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Full text of "The life of John Marshall"

THE LIFE OF JOHN MARSHALL 

VOLUME III 




JOHX MARSHALL 
From the portrait by Chester Harding 



THE LIFE 

OP 

JOHN MARSHALL 

BY 

ALBERT J. BEVERIDGE 
Volume III 

CONFLICT AND CONSTRUCTION 

1800-1815 




BOSTON AND NEW YORK 

HOUGHTON MIFFLIN COMPANY 

(atbe tttoewiDc pre&f Cambri&ge 



UOPYRIGHT, 1919, BY ALBERT J. BEVERIDGS 
ALL RIGHTS RESERVED 



APR 2 4 1387 



70314G1203 



PREFACE 

Marshall's great Constitutional opinions grew out 
of, or were addressed to, serious public conditions, 
national in extent. In these volumes the effort is 
made to relate the circumstances that required him 
to give to the country those marvelous state papers : 
for Marshall's opinions were nothing less than state 
papers and of the first rank. In order to under- 
stand the full meaning of his deliverances and to 
estimate the just value of his labors, it is necessary 
to know the historical sources of his foremost exposi- 
tions of the Constitution, and the historical pur- 
poses they were intended to accomplish. Without 
such knowledge, Marshall's finest pronouncements 
become mere legal utterances, important, to be 
sure, but colorless and unattractive. 

It is worthy of repetition, even in a preface, that 
the history of the times is a part of his greatest 
opinions; and that, in the treatment of them a resume 
of the events that produced them must be given. 
For example, the decision of Marbury vs. Madison, 
at the time and in the manner it was rendered, was 
compelled by the political situation then existing, 
unless the principle of judicial supremacy over legis- 
lation was to be abandoned. The Judiciary Debate 
of 1802 in Congress — one of the most brilliant as 
well as most important legislative engagements in 
parliamentary history — can no more be over- 
looked by the student of American Constitutional 



vi PREFACE 

development, than the opinion of Marshall in Mar- 
bury vs. Madison can be disregarded. 

Again, in Cohens vs. Virginia, the Chief Justice 
rises to heights of exalted — almost emotional — elo- 
quent . Yet the case itself was hardly more than a 
police court controversy. If the trivial fine of itiner- 
ant peddlars of lottery tickets were alone involved, 
Marshall's splendid passages become unnecessary 
and, indeed, pompous rhetoric. But when the cur- 
tains of history are raised, we see the heroic part 
that Marshall played and realize the meaning of his 
powerful language. While Marshall's opinion in 
M'Culloch vs. Maryland, even taken by itself, is a 
major treatise on constitutional government, it be- 
comes a fascinating chapter in an engaging story, 
when read in connection with an account of the 
situation which compelled that outgiving. 

The same thing is true of his other historic ut- 
terances. Indeed, it may be said that his weigh- 
tiest opinions were interlocking parts of one great 
drama. 

Much space has been given to the conspiracy and 
trials of Aaron Burr. The combined story of that ad- 
venture and of those prosecutions has not hitherto 
been told. In the conduct of the Burr trials, Mar- 
shall appears in a more intimate and personal fash- 
ion than in any other phase of his judicial career; 
the entire series of events that make up that page 
of our history is a striking example of the manipu- 
lation of public opinion by astute politicians, and is, 
therefore, useful for the self-guidance of American 
democracy. Most important of all, the culminating 



PREFACE vii 

result of this dramatic episode was the definitive 
establishment of the American law of treason. 

In narrating the work of a jurist, the temptation 
is very strong to engage in legal discussion, and to 
cite and comment upon the decisions of other courts 
and the opinions of other judges. This, however, 
would be the very negation of biography ; nor would 
it add anything of interest or enlightenment to the 
reader. Such information and analysis are given 
fully in the various books on Constitutional law and 
history, in the annotated reports, and in the ency- 
clopaedias of law upon the shelves of every lawyer. 
Care, therefore, has been taken to avoid making any 
part of the Life of John Marshall a legal treatise. 

The manuscript of these volumes has been read by 
Professor Edward Channing of Harvard; Professor 
Max Farrand of Yale; Professor Edward S. Corwin 
of Princeton; Professor William E. Dodd of Chicago 
University; Professor Clarence W. Alvord of the 
University of Illinois; Professor James A. Wood- 
burn of Indiana University; Professor Charles H. 
Ambler of the University of West Virginia; Professor 
Archibald Henderson of the University of North 
Carolina; Professor D. R. Anderson of Richmond 
(Va.) College; and Dr. H. J. Eckenrode of Richmond, 
Virginia. 

The manuscript of the third volume has been 
read by Professor Charles A. Beard of New York; 
Dr. Samuel Eliot Morison of Harvard; and Mr. 
Harold J. Laski of Harvard. The manuscript of both 
the third and fourth volumes has been read, from 



viii PREFACE 

the lawyer's point of view, by Mr. Arthur Lord of 
Boston, President of the Massachusetts Bar Associa- 
tion, and by Mr. Charles Martindale of Indianapolis. 

The chapters on the Burr conspiracy and trials 
have been read by Professor Walter Flavius McCaleb 
of New York; Professor Isaac Joslin Cox of the Uni- 
versity of Cincinnati; and Mr. Samuel H. Wandell 
of New York. Chapter Three of Volume Three (Mar- 
bury vs. Madison) has been read by the Honorable 
Oliver Wendell Holmes, Associate Justice of the Su- 
preme Court of the United States; by the Honor- 
able Philander Chase Knox, United States Senator; 
and by Mr. James M. Beck of New York. Other 
special chapters have been read by the Honorable 
Henry Cabot Lodge, United States Senator; by 
Professor J. Franklin Jameson of the Department 
of Historical Research of the Carnegie Institution 
of Washington ; by Professor Charles H. Haskins of 
Harvard ; by Dr. William Draper Lewis of Philadel- 
phia, former Dean of the Law School of the Univer- 
sity of Pennsylvania; and by Mr. W. B. Bryan of 
Washington. 

All of these gentlemen have made valuable sugges- 
tions of which I have availed myself, and I gratefully 
acknowledge my indebtedness to them. The respon- 
sibility for everything in these volumes, however, is, 
of course, exclusively mine; and, in stating my appre- 
ciation of the comment and criticism with which 
I have been favored, I do not wish to be relieved of 
my burden by allowing the inference that any part 
of it should be assigned to others. 

I also owe it to myself again to express my heavy 



PREFACE ix 

obligation to Mr. Worthington Chauncey Ford, 
Editor of the Massachusetts Historical Society. 
As was the case in the preparation of the first two 
volumes of this work, Mr. Ford has extended to me 
the resources of his ripe scholarship; while his wise 
counsel, steady encouragement, and unselfish as- 
sistance, have been invaluable in the prosecution of 
a long and exacting task. 

I also again acknowledge my indebtedness to Mr. 
Lindsay Swift, Editor of the Boston Public Library, 
who has read with critical care not only the many 
drafts of the manuscript, but also the proofs of the 
entire work. Mr. Swift has given, unstintedly, his 
rare literary taste and critical accomplishment to the 
examination of these pages. 

I also tender my hearty thanks to Dr. Gardner 
Weld Allen of Boston, who has generously directed 
the preparation of the bibliography and personally 
revised it. 

Mr. David Maydole Matteson of Cambridge, 
Massachusetts, has made the index of these volumes 
as he made that of the first two volumes, and has 
combined both indexes into one. In rendering this 
service, Mr. Matteson has also searched for points 
where text and notes could be made more accurate; 
and I wish to express my appreciation of his kind- 
ness. 

My thanks are also owing to the staff of The River- 
side Press, and particularly to Mr. Lanius D. Evans, 
to whose keen interest and watchful care in the pro- 
duction of this work I am indebted for much of 
whatever exactitude it may possess. 



x PREFACE 

The manuscript sources have been acknowledged, 
in all instances, in the footnotes where references 
to them have been made, except in the case of the 
letters of Marshall to his relatives, for which I again 
thank those descendants and connections of the 
Chief Justice named in the preface to Volumes One 
and Two. The Hopkinson manuscripts are in the 
possession of Mr. Edward Hopkinson of Philadel- 
phia, to whom I am indebted for the privilege of 
inspecting this valuable source and for furnishing 
me with copies of important letters. 

In preparing these volumes, Mr. A. P. C. Griffin, 
Assistant Librarian, and Mr. John Clement Fitz- 
patrick, of the Manuscript Division of the Library 
of Congress, have been even more obliging, if pos- 
sible, than they were in the preparation of the first 
part of this work. The officers and their assistants 
of the Boston Public Library, the Boston Athe- 
naeum, the Massachusetts State Library, the Mas- 
sachusetts Historical Society, the Pennsylvania 
Historical Society, the Virginia State Library, the 
Indiana State Library, and the Indianapolis City 
Library, have assisted whole-heartedly in the per- 
formance of my labors; and I am glad of the op- 
portunity to thank all of them for their interest 
and help. 

Albert J. Beveridge 



CONTENTS 



I. DEMOCRACY JUDICIARY I 

The National Capital an unsightly "village in the woods" — Diffi- 
culty and danger of driving through the streets — Habits of the pop- 
ulation — Taverns, shops, and dwellings — Warring interests — A 
miniature of the country — Meaning of the Republican victory of 
1800 — Anger, chagrin, and despair of the Federalists — Marshall's 
views of the political situation — He begins to strengthen the Su- 
preme Court — The Republican programme of demolition — Jef- 
ferson's fear and hatred of tb- National Judiciary — The conduct of 
the National Judges gives Jefferson his opportunity — Their arro- 
gance, harshness, and partisanship — Political charges to grand 
juries — Arbitrary application of the common law — Jefferson 
makes it a political issue — Rigorous execution of the Sedition Law 
becomes hateful to the people — The picturesque and historic trials 
that made the National Judiciary unpopular — The trial and con- 
viction of Matthew Lyon; of Thomas Cooper; of John Fries; of 
Isaac Williams; of James T. Callender ; of Thomas and Abijah Adams 
— Lawyers for Fries and Callender abandon the cases and leave the 
court-rooms — The famous Virginia and Kentucky Resolutions 
raise the fundamental question as to the power that can interpret 
the Constitution — Jefferson plans the assault on the National Ju- 
diciary. 

II. THE ASSAULT ON THE JUDICIARY . . . . 51 

The assault on the Judiciary begins — Intense excitement of po- 
litical parties — Message on the Judiciary that Jefferson sent to 
Congress — Message he did not send — The Federalists fear the de- 
struction of the National Judiciary — The grave defects of the Ells- 
worth Judiciary Act of 1789 — The excellent Federalist Judiciary 
Act of 1801 — The Republicans determined to repeal it — The 
great Judiciary debate begins in the Senate — The Federalists assert 
the exclusive power of the Supreme Court to decide on the constitu- 
tionality of acts of Congress — The dramatic language of Senator 
Gouverneur Morris — The Republican Senators evade the issue — 
The Federalist Senators press it — Aaron Burr takes his seat as Vice- 
President — His fateful Judiciary vote — Senator John Breck- 
enridge denies the supervisory power of the Supreme Court over 
legislation — The debate in the House — Comments of the press — 
Extravagant speeches — Appearance and characteristics of John 
Randolph of Roanoke — The Federalists hint resistance — The lam- 
entations of the Federalist newspapers — The Republicans repeal 



xii CONTENTS 

the Federalist Judiciary act — They also suspend the sessions of 
the Supreme Court for fourteen months — This done to prevent 
Marshall from overthrowing the Republican repeal of the Federalist 
Judiciary Act of 18m — Marshall proposes to his colleagues on the 
bench that they refuse to sit as Circuit Judges — They reject his 
proposal — The New England Federalist leaders begin to talk se- 
cession — The jubilation of the Republican press: "Huzza for the 
Washington Judiciary /" 

IK. MARBURY VERSUS MADISON ...... 101 

Power of the Judiciary over legislation the supreme issue — Federal- 
ist majorities in State Legislatures assert that Supreme Court can 
annul acts of Congress — Republican minorities vigorously resist the 
doctrine of Judiciary supremacy — Republican strength grows rap- 
idly — Critical situation before the decision of Marbury vs. Madi- 
son — Power of the Supreme Court must be promptly asserted or 
permanently abandoned — Marshall confronts a serious dilemma — 
Escape from it apparently impossible — Republicans expect him 
to decide against Madison — They threaten impeachment — Mar- 
shall delivers his celebrated opinion — His reasoning on the power 
of the Judiciary merely repeats Federalist arguments in the Judiciary 
debate — He persuades his associates on the Supreme Bench that 
Section 13 of the Ellsworth Judiciary Act is unconstitutional — 
Startling boldness of his conception — History of Section 13 — 
Drawn by framers of the Constitution and never before questioned 

— Marshall's opinion excites no immediate comment — Jefferson 
does not attack it until after his reelection — Republican opposition 
to the Judiciary apparently subsides — Cause of this — Purchase of 
Louisiana — Jefferson compelled to take "unconstitutional" action 

— He counsels secrecy — The New England Federalist secession 
movement gains strength — Jefferson reelected — Impeachment 
the next move. 

IV. IMPEACHMENT 151 

Republicans plan to subjugate the Judiciary — Federalist Judges 
to be ousted and Republicans put in their places — Marshall's deci- 
sion in United States vs. Fisher — The Republican impeachment pro- 
gramme carried out — The trial and the conviction of Judge Addi- 
son — The removal of Judge Pickering — The House impeaches 
Justice Chase of the Supreme Court — Republicans manipulate 
public opinion — The articles of impeachment — Federalists con- 
vinced that Chase is doomed — Marshall the chief object of attack — 
His alarm — He proposes radical method of reviewing decisions of 
the Supreme Court — Reason for Marshall's trepidation — The im- 
peachment trial — Burr presides — He is showered with favors by 
the Administration — Appearance of Chase — His brilliant array 
of counsel — Luther Martin of Maryland — Examination of wit- 
nesses — Marshall testifies — He makes an unfavorable impression: 
"too much caution; too much fear; too much cunning" — Argu- 



CONTENTS xiii 

ments of counsel — Weakness of the House managers — They are 
overwhelmed by counsel for Chase — Joseph Hopkinson's brilliant 
appeal — He captivates the Senate — Nicholson's fatal admission — 
Rodney's absurd speech — Luther Martin's great argument — Ran- 
dolph closes for the managers — He apostrophizes Marshall — His 
pathetic breakdown — The Senate votes — Tense excitement in the 
Chamber — Chase acquitted — A determinative event in American 
history — Independence of the National Judiciary saved — Mar- 
shall for the first time secure in the office of Chief Justice. 

V. BIOGRAPHER 223 

Marshall agrees to write the "Life of Washington" — He is un- 
equipped for the task — His grotesque estimate of time, labor, and 
profits — Jefferson is alarmed — Declares that Marshall is writing 
for "electioneering purposes" — Postmasters as book agents — 
They take their cue from Jefferson — Rumor spreads that Mar- 
shall's book is to be partisan — Postmasters take few subscrip- 
tions — Parson Weems becomes chief solicitor for Marshall's book 

— His amusing canvass — Marshall is exa&peratingly slow — Sub- 
scribers are disgusted at delay — First two volumes appear — 
Public is dissatisfied — Marshall is worried — He writes agitated 
letters — His publisher becomes disheartened — Marshall resents 
criticism — The lamentable inadequacy of the first three volumes 

— Fourth volume an improvement — Marshall's heavy task in the 
writing of the last volume — He performs it skillfully — Descrip- 
tion of the foundation of political parties — Treatment of the 
policies of Washington's administrations — Jefferson calls Mar- 
shall's biography a "five-volume libel" and "a party diatribe" — 
He seeks an author to answer Marshall — He resolves to publish 
his "Anas" chiefly as a reply to Marshall — He bitterly attacks 
him and the biography — Other criticisms of Marshall's work — 
His lifelong worry over the imperfections of the first edition — He 
decides to revise it — He devotes nearly twenty years to the task — 
Work on the Supreme Bench while writing the first edition. 

VI. THE BURR CONSPIRACY 274 

Remarkable effect on the Senate of Burr's farewell speech — His 
desperate plight — Stanchness of friends — Jefferson's animosity — 
Unparalleled combination against Burr — He runs for Governor of 
New York and is defeated — Hamilton's lifelong pursuit of Burr 

— The historic duel — Dismemberment of the Union long and 
generally discussed — Washington's apprehensions in 1784 — 
Jefferson in 1803 approves separation of Western country "if it 
be for their good" — The New England secessionists ask British 
Minister for support — He promises his aid — Loyalty of the West 

— War with Spain imminent — People anxious to "liberate" 
Mexico — Invasion of that country Burr's long-cherished dream — 
He tries to get money from Great Britain — He promises British 
Minister to divide the Republic — His first Western journey — 



xiv CONTENTS 

The people receive him cordially — He is given remarkable ovation 
at Nashville — Andrew Jackson's ardent friendship — Burr enthu- 
siastically welcomed at New Orleans — War with Spain seemingly 
inevitable — Burr plans to lead attack upon Mexico when hostili- 
ties begin — Spanish agents start rumors against him — Eastern 
papers print sensational stories — Burr returns to the Capital — 
Universal demand for war with Spain — Burr intrigues in Wash- 
ington — He again starts for the West — He sends his famous 
cipher dispatch to Wilkinson — Blennerhassett joins Burr — They 
purchase four hundred thousand acres of land on the Washita River 

— Plan to settle this land if war not declared — Wilkinson's eager- 
ness for war — Burr arraigned in the Kentucky courts — He is dis- 
charged — Cheered by the people — Wilkinson determines to 
betray Burr — He writes mysterious letters to the President — 
Jefferson issues his Proclamation — Wilkinson's reign of military 
lawlessness in New Orleans — Arrest of Burr's agents, Bollmann 
and Swartwout — Arrest of Adair — Prisoners sent under guard by 
ship to Washington — The capital filled with wild rumors — Jef- 
ferson's slight mention of the Burr conspiracy in his Annual Mes- 
sage — Congress demands explanation — Jefferson sends Special 
Message denouncing Burr: his " guilt is placed beyond question" 

— Effect upon the public mind — Burr already convicted in popu- 
lar opinion. 

VII. THE CAPTURE AND ARRAIGNMENT ... 343 

Bollmann and Swartwout arrive at Washington and are impris- 
oned — Adair and Alexander released by the court at Baltimore 
for want of proof — Eaton's affidavit against Burr — Bollmann and 
Swartwout apply to Supreme Court for writ of habeas corpus — 
Senate passes bill suspending the privilege of that writ — The 
House indignantly rejects the Senate Bill — Marshall delivers the 
first of his series of opinions on treason — No evidence against Boll- 
mann and Swartwout, and Marshall discharges them — Violent 
debate in the House — Burr, ignorant of all, starts down the 
Cumberland and Mississippi with nine boats and a hundred men 

— First learns in Mississippi of the proceedings against him — 
Voluntarily surrenders to the civil authorities — The Mississippi 
grand jury refuses to indict Burr, asserting that he is guilty of no 
offense — Court refuses to discharge him — Wilkinson's frantic 
efforts to seize or kill him — He goes into hiding — Court forfeits 
his bond — He escapes — He is captured in Alabama and confined 
to Fort Stoddert — Becomes popular with both officers and men — 
Taken under military guard for a thousand miles through the wil- 
derness — Arrives at Richmond — Marshall issues warrant for his 
delivery to the civil authorities — The first hearing before the 
Chief Justice — Shall Burr be committed for treason — The argu- 
ment — Marshall's opinion — Probable cause to suspect Burr 
guilty of attempt to attack Mexico; no evidence upon which to 
commit Burr for treason — Marshall indirectly criticizes Jefferson 

— Burr's letters to his daughter — Popular demand for Burr's con- 



CONTENTS xv 

viction and execution — Jefferson writes bitterly of Marshall — 
Administration scours country for evidence against Burr — Ex- 
penditure of public money for this purpose — Burr gains friends 
in Richmond — His attorneys become devoted to him — Mar- 
shall attends the famous dinner at the house of John Wickham, 
not knowing that Burr is to be a guest — He is denounced for 
doing so — His state of mind. 

VIII. ADMINISTRATION VERSUS COURT . . . .398 

Richmond thronged with visitors — Court opens in the House of 
Delegates — The hall packed — Dress, appearance, and manner 
of spectators — Dangerous state of the public temper — Andrew 
Jackson arrives and publicly denounces Jefferson — He declares 
trial a "political persecution" — Winfield Scott's opinion: the 
President the real prosecutor — Grand jury formed and instructed 

— Believe Burr guilty — Burr's passionate reply to George Hay, 
the District Attorney — Hay reports to Jefferson — Burr's counsel 
denounce the Administration's efforts to excite the public against 
him — Attorneys on both sides speak to the public — Hay moves 
to commit Burr for treason — Marshall's difficult and dangerous 
situation — Jefferson instructs Hay — Government offers testi- 
mony to support its motion — Luther Martin arrives — Hay 
again reports to Jefferson, who showers the District Attorney with 
orders — Burr asks that the court grant a writ of subpoena duces 
tecum directed to Jefferson — Martin boldly attacks the President 

— Wirt's clever rejoinder — Jefferson calls Martin that "Federal 
bulldog" — Wants Martin indicted — Marshall's opinion on Burr's 
motion for a subpoena duces tecum, — He grants the writ — Hay 
writes Jefferson, who makes able and dignified reply — Wilkinson 
arrives — Washington Irving's description of him — Testimony be- 
fore the grand jury — Burr and Blennerhassett indicted for treason 
and misdemeanor — Violent altercations between counsel. 

IX. WHAT IS TREASON? 47G 

Burr becomes popular with Richmond society — Swartwout chal- 
lenges Wilkinson to a duel — Marshall sets the trial for August 3 — 
The prisoner's life in the penitentiary — Burr's letters to his daugh- 
ter — Marshall asks his associates on the Supreme Bench for their 
opinions — Trial begins — Difficulty of selecting a jury — Every- 
body convinced of Burr's guilt — Hay writes Jefferson that Marshall 
favors Burr — At last jury is formed — The testimony — No overt 
act proven — Burr's counsel move that collateral testimony shall 
not be received — Counsel on both sides make powerful and bril- 
liant arguments — Marshall delivers his famous opinion on the law 
of constructive treason — Jury returns verdict of not guilty — Jef- 
ferson declares Marshall is trying to keep evidence from the public 

— He directs Hay to press trial on indictment for misdemeanor — 
Burr demands letters called for in the subpoena duces tecum to Jef- 
ferson — President attempts to arrange a truce with the Chief Jus- 



xvi CONTENTS 

tlce — Hay despairs of convicting Burr for misdemeanor — Trial on 
this charge begins — Many witnesses examined — Prosecution col- 
lapses — Jury returns a verdict of not guilty — Hay moves to hold 
Burr and his associates for treason committed in Ohio — On this 
motion Marshall throws the door wide open to all testimony — He 
delivers his last opinion in the Burr trials — Refuses to hold Burr 
for treason, but commits him for misdemeanor alleged to have 
been committed in Ohio — Marshall adjourns court and hurries to 
the Blue Ridge — He writes Judge Peters of his situation during 
the trial — Jefferson denounces Marshall in Message he prepares 
for Congress — Cabinet induces him to strike out the most em- 
phatic language — Marshall scathingly assailed in the press — The 
mob at Baltimore — Marshall is hanged in effigy — The attempt to 
expel Senator John Smith of Ohio from the Senate — In his report 
on Smith case, John Quincy Adams attacks Marshall's rulings and 
opinion in the Burr trials — Grave foreign complications probably 
save Marshall from impeachment. 

X. FRAUD AND CONTRACT 546 

The corrupting of the Georgia Legislature in the winter of 1794-95 

— The methods of bribery — Prominent men involved — Law 
passed selling thirty-five million acres of land for less than one and 
one half cents an acre — Land companies pay purchase price and re- 
ceive deeds — Merits of the transaction — Poverty of Georgia and 
power of the Indians — Invention of the cotton gin increases land 
values — Period of mad land speculation — The origin of the con- 
tract clause in the Constitution — Wrath of the people of Georgia 
on learning of the corrupt land legislation — They demand that the 
venal act be repealed — James Jackson leads the revolt — A new Leg- 
islature elected — It "rescinds" the land sale law — Records of the 
transaction publicly burned — John Randolph visits Georgia — 
Land companies sell millions of acres to innocent purchasers — Citi- 
zens of Boston purchase heavily — The news of Georgia's repeal of 
the land sale act reaches New England — War of the pamphlets — 
Georgia cedes to the Nation her claims to the disputed domain — Five 
million acres are reserved to satisfy claimants — The New England 
investors petition Congress for relief — Jefferson's commissioners 
report in favor of the investors — John Randolph's furious assault 
on the relief bill — He attacks Gideon Granger, Jefferson's Post- 
master-General, for lobbying on the floor of the House — The 
origin of the suit Fletcher vs. Peck — The nature of this litigation 

— The case is taken to the Supreme Court — Marshall delivers his 
opinion — Legislation cannot be annulled merely because legislators 
voting for it were corrupted — "Great principles of justice protect 
innocent purchasers "— The Georgia land sale act, having been 
accepted, is a contract — The repeal of that act by the Georgia Leg- 
islature is a violation of the contract clause of the Constitution — 
Justice Johnson dissents — He intimates that Fletcher vs. Peck "is 
a mere feigned case " — Meaning, purpose, and effect of Marshall's 
opinion — In Congress, Randolph and Troup of Georgia merci- 



CONTENTS xvii 

lessly assail Marshall and the Supreme Court — The fight for the 
passage of a bill to relieve the New England investors is renewed — 
Marshall's opinion and the decision of the court influential in se- 
curing the final passage of the measure. 

APPENDIX 

A. The Paragraph Omitted from the Final Draft of 

Jefferson's Message to Congress, December 8, 1801 605 

B. Letter of John Taylor " of Caroline " to John Breck- 

enridge containing arguments for the repeal of 
the Federalist National Judiciary Act of 1801 . . 607 

C. Cases of which Chief Justice Marshall may have 

HEARD BEFORE HE DELIVERED HIS OPINION IN MAR- 

bury vs. Madison 61 1 

D. Text, as generally accepted, of the Cipher Letter 

of Aaron Burr to James Wilkinson, dated July 29, 
1806 614 

E. Excerpt from Speech of William Wirt at the Trl\l of 

Aaron Burr 616 

F. Essential Part of Marshall's Opinion on Construc- 

tive Treason delivered at the Trial of Aaron 
Burr, on Monday, August 31, 1807 619 

WORKS CITED IN THIS VOLUME 627 



ILLUSTRATIONS 

JOHN MARSHALL Colored Frontispiece 

From a portrait by Chester Harding painted in Washington in 1828 
for the Boston Athenaeum and still in the possession of that institu- 
tion. 

ASSOCIATE JUSTICES SITTING WITH MARSHALL IN 
THE CASE OF MARBURY VERSUS MADISON: WIL- 
LIAM CUSHING, WILLIAM PATERSON, SAMUEL 
CHASE, BUSHROD WASHINGTON, ALFRED MOORE 128 

Reproduced from etchings by Max and Albert Rosenthal in Hamp- 
ton L. Carson's history of The Supreme Court of the United States, by 
the courtesy of the Lawyers' Cooperative Publishing Company, 
Rochester, New York. The etchings were made from originals as 
follows: Cushing, from a pastel by Sharpless, Philadelphia, 1799, in 
the possession of the family; Paterson, from a painting in the posses- 
sion of the family; Chase, from a painting by Charles Wilson Peale in 
Independence Hall, Philadelphia; Washington, from a painting by 
Chester Harding in the possession of the family; Moore, from a minia- 
ture in the possession of Mr. Alfred Moore Waddell, of Wilmington, 
North Carolina. 

SAMUEL CHASE 160 

From Sanderson's Biography of the Signers to the Declaration of Inde- 
pendence, after a painting by Jarvis. 

FACSIMILE OF A LETTER FROM JOHN MARSHALL 
TO JUSTICE SAMUEL CHASE DATED JANUARY 23, 
1804, ADVOCATING APPELLATE JURISDICTION IN 
THE LEGISLATURE 17G 

JOHN RANDOLPH 188 

From the painting by Chester Harding in the Corcoran Gallery of Art, 
Washington, D.C. 

FACSIMILE OF A PART OF MARSHALL'S LIST OF 
CORRECTIONS FOR HIS LIFE OF WASHINGTON . 240 

AARON BURR 270 

From a portrait by John Vanderlyn in the possession of Mr. Pierrepont 
Edwards, of Elizabeth, New Jersey. 



xx ILLUSTRATIONS 

LUTHER MARTIN 428 

From a portrait in Independence Hall, Philadelphia. 



LIST OF ABBREVIATED TITLES MOST 
FREQUENTLY CITED 

All references here are to the List of Authorities at the end of this volume 

Adams : U.S. See Adams, Henry. History of the United States. 

Ames. See Ames, Fisher. Works. 

Channing: Jeff. System. See Channing, Edward. Jeffersonian 
System, 1801-11. 

Channing: U.S. See Channing, Edward. History of the 
United States. 

Chase Trial. See Chase, Samuel. Trial. 

Corwin. See Corwin, Edward Samuel. Doctrine of Judicial 
Review. 

Cutler. See Cutler, William Parker, and Julia Perkins. Life, 
Journals, and Correspondence of Manasseh Cutler. 

Dillon. See Marshall, John. Life, Character, and Judicial Serv- 
ices. Edited by John Forrest Dillon. 

Eaton: Prentiss. See Eaton, William. Life. 

Jay: Johnston. See Jay, John. Correspondence and Public 
Papers. 

Jefferson Writings : Washington. See Jefferson, Thomas, Writ- 
ings. Edited by Henry Augustine Washington. 

King. See King, Rufus. Life and Correspondence. 

McCaleb. See McCaleb, Walter Flavius. Aaron Burr Con- 
spiracy. 

McMaster: U.S. See McMaster, John Bach. History of the 
People of the United States. 

Marshall. See Marshall, John. Life of George Washington. 

Memoirs, J.Q.A.: Adams. See Adams, John Quincy. Memoirs. 

Morris. See Morris, Gouverneur. Diary and Letters. 

N.E. Federalism: Adams. See New-England Federalism, 1800- 
1815, Documents relating to. Edited by Henry Adams. 

Plumer. See Plumer, William. Life. 

Priv. Corres.: Colton. See Clay, Henry. Private Correspond- 
ence. Edited by Calvin Colton. 

Records Fed. Conv. : Farrand. See Records of the Federal Con- 
vention of 1787. 

Story. See Story, Joseph. Life and Letters. 



xxii LIST OF ABBREVIATED TITLES 

Trials of Smith and Ogden. See Smith, William Steuben, and 
Ogden, Samuel Gouverneur. Trials for Misdemeanors. 

Wharton: Social Life. See Wharton, Anne Hollingsworth. 
Social Life in the Early Republic. 

Wharton: State Trials. See AVharton, Francis. State Trials of 
the United States during the Administrations of Washing- 
ton and Adams. 

Wilkinson: Memoirs. See Wilkinson, James. Memoirs of My 
Own Times. 

Works: Colton. See Clay, Henry. Works. 

Works: Ford. See Jefferson, Thomas. Works. Federal Edi- 
tion. Edited by Paul Leicester Ford. 

Writings, J. Q. A.: Ford. See Adams, John Quincy. Writings. 
Edited by Worthington Chauncey Ford. 



THE LIFE OF JOHN MARSHALL 



THE LIFE OF JOHN MARSHALL 

CHAPTER I 
democracy: judiciary 

Rigorous law is often rigorous injustice. (Terence.) 

The Federalists have retired into the Judiciary as a stronghold, and from 

that battery all the works of republicanism are to be battered down. 

(Jefferson.) 
There will be neither justice nor stability in any system, if some material 
parts of it are not independent of popular control. (George Cabot.) 

A strange sight met the eye of the traveler who, 
aboard one of the little river sailboats of the time, 
reached the stretches of the sleepy Potomac sepa- 
rating Alexandria and Georgetown. A wide swamp 
extended inland from a modest hill on the east to a 
still lower elevation of land about a mile to the west. 1 
Between the river and morass a long flat tract bore 
clumps of great trees, mostly tulip poplars, giving, 
when seen from a distance, the appearance of "a 
fine park." 2 

Upon the hill stood a partly constructed white 
stone building, mammoth in plan. The slight eleva- 
tion north of the wide slough was the site of an ap- 
parently finished edifice of the same material, noble 
in its dimensions and with beautiful, simple lines, 3 
but "surrounded with a rough rail fence 5 or 6 feet 
high unfit for a decent barnyard." 4 From the river 

1 Gallatin to his wife, Jan. 15, 1801, Adams: Life of Albert Gallatin, 
252; also Bryan: History of the National Capital, i, 357-58. 

2 First Forty Years of Washington Society: Hunt, 11. 

3 lb.; and see Wolcott to his wife, July 4, 1800, Gibbs: Adminis- 
trations of Washington and John Adams, n, 377. 

* Plumer to Thompson, Jan. 1, 1803, Plumer MSS. Lib. Cong. 



% JOHN MARSHALL 

nothing could be seen beyond the groves near the 
banks of the stream except the two great build- 
ings and the splendid trees which thickened into a 
seemingly dense forest upon the higher ground to 
the northward. 1 

On landing and making one's way through the un- 
derbrush to the foot of the eastern hill, and up the 
gullies that seamed its sides thick with trees and 
tangled wild grapevines, 2 one finally reached the 
immense unfinished structure that attracted atten- 
tion from the river. Upon its walls laborers were 
languidly at work. 

Clustered around it were fifteen or sixteen wooden 
houses. Seven or eight of these were boarding-houses, 
each having as many as ten or a dozen rooms all 
told. The others were little affairs of rough lumber, 
some of them hardly better than shanties. One was 
a tailor shop; in another a shoemaker plied his trade; 
a third contained a printer with his hand press and 
types, while a washerwoman occupied another; and 
in the others there was a grocery shop, a pamphlets- 
and-stationery shop, a little dry-goods shop, and an 
oyster shop. No other human habitation of any kind 
appeared for three quarters of a mile. 3 

A broad and perfectly straight clearing had been 
made across the swamp between the eastern hill and 
the big white house more than a mile away to the 
westward. In the middle of this long opening ran a 
roadway, full of stumps, broken by deep mud holes 
in the rainy season, and almost equally deep with 

1 Gallatin to his wife, Jan. 15, 1801, Adams: Gallatin, 252-53. 
3 Hunt, 10. 3 Gallatin to his wife, supra. 



DEMOCRACY: JUDICIARY 3 

dust when the days were dry. On either border was 
a path or "walk" made firm at places by pieces of 
stone; though even this "extended but a little way." 
Alder bushes grew in the unused spaces of this thor- 
oughfare, and in the depressions stagnant water 
stood in malarial pools, breeding myriads of mos- 
quitoes. A sluggish stream meandered across this 
avenue and broadened into the marsh. 1 

A few small houses, some of brick and some of 
wood, stood on the edge of this long, broad embryo 
street. Near the large stone building at its western 
end were four or five structures of red brick, looking 
much like ungainly warehouses. Farther westward 
on the Potomac hills was a small but pretentious 
town with its many capacious brick and stone resi- 
dences, some of them excellent in their architecture 
and erected solidly by skilled workmen. 2 

Other openings in the forest had been cut at vari- 
ous places in the wide area east of the main highway 
that connected the two principal structures already 
described. Along these forest avenues were scattered 
houses of various materials, some finished and some 
in the process of erection. 3 Here and there unsightly 
gravel pits and an occasional brick kiln added to the 
raw unloveliness of the whole. 

Such was the City of Washington, with George- 
town near by, when Thomas Jefferson became Presi- 
dent and John Marshall Chief Justice of the United 
States — ■ the Capitol, Pennsylvania Avenue, the 

1 Bryan, I, 357-58. 

2 A few of these are still standing and occupied. 

3 Gallatin to his wife, supra; also Wharton: Social Life in the Early 
Republic, 58-59. 



4 JOHN MARSHALL 

"Executive Mansion" or "President's Palace," the 
department buildings near it, the residences, shops, 
hostelries, and streets. It was a picture of sprawl- 
ing aimlessness, confusion, inconvenience, and utter 
discomfort. 

When considering the events that took place in 
the National Capital as narrated in these volumes, 
— the debates in Congress, the proclamations of 
Presidents, the opinions of judges, the intrigues of 
politicians, — when witnessing the scenes in which 
Marshall and Jefferson and Randolph and Burr and 
Pinkney and Webster were actors, we must think 
of Washington as a dismal place, where few and 
unattractive houses were scattered along muddy 
openings in the forests. 

There was on paper a harmonious plan of a splen- 
did city, but the realization of that plan had scarcely 
begun. As a situation for living, the Capital of the 
new Nation was, declared Gallatin, a "hateful 
place." x Most of the houses were "small miserable 
huts" which, as Wolcott informed his wife, "present 
an awful contrast to the public buildings." 2 

Aside from an increase in the number of residences 
and shops, the "Federal City" remained in this 
state for many years. "The Chuck holes were not 
bad" wrote Otis of a journey out of Washington in 
1815; "that is to say they were none of them much 
deeper than the Hubs of the hinder wheels. They 
were however exceedingly frequent." 3 Pennsylvania 

1 Gallatin to his wife, Aug. 17, 1802, Adams: Gallatin, 304. 

2 Wolcott to his wife, July 4, 1800, Gibbs, n, 377. 

3 Otis to his wife, Feb. 28, 1815, Morison: Life and Letters of 
Harrison Gray Otis, n, 170-71. This letter is accurately descriptive 



DEMOCRACY: JUDICIARY 5 

Avenue was, at this time, merely a stretch of "yel- 
low, tenacious mud," l or dust so deep and fine that, 
when stirred by the wind, it made near-by objects 
invisible. 2 And so this street remained for dec- 
ades. Long after the National Government was 
removed to Washington, the carriage of a diplomat 
became mired up to the axles in the sticky clay 
within four blocks of the President's residence and 
its occupant had to abandon the vehicle. 

John Quincy Adams records in his diary, April 4, 
1818, that on returning from a dinner the street was 
in such condition that " our carriage in coming for us 
. . was overset, the harness broken. We got home 
with difficulty, twice being on the point of overset- 
ting, and at the Treasury Office corner we were both 
obliged to get out . . in the mud. . . It was a mercy 
that we all got home with whole bones." 3 

of travel from the National Capital to Baltimore as late as 1815 and 
many years afterward. 

"The Bladensburg run, before we came to the bridge, was happily in 
no one place above the Horses bellies. — As we passed thro', the driver 
pointed out to us the spot, right under our wheels, where all the stage 
horses last year were drowned, but then he consoled us by shewing the 
tree, on which all the Passengers but one, were saved. Whether that 
one was gouty or not, I did not enquire. . . 

" We . . arriv'd safe at our first stage, Ross's, having gone at a rate 
rather exceeding two miles & an half per hour. . . In case of a break 
Down or other accident, . . I should be sorry to stick and freeze in 
over night (as I have seen happen to twenty waggons) for without an 
extraordinary thaw I could not be dug out in any reasonable dinner- 
time the next day." 

Of course conditions were much worse in all parts of the country, 
except the longest and most thickly settled sections. 

1 Parton : Life of Thomas Jefferson, 622. 

2 Plumer to his wife, Jan. 25, 1807, Plumer MSS. Lib. Cong. 

3 Memoirs of John Quincy Adams: Adams, iv, 74; and see Quincy: 
Life of Josiah Quincy, 186. 

Bayard wrot? to Rodney: "four months [in Washington] almost 



6 JOHN MARSHALL 

Fever and other malarial ills were universal at 
certain seasons of the year. 1 "No one, from the 
North or from the high country of the South, can 
pass the months of August and September there 
without intermittent or bilious fever," records King 
in 1803. 2 Provisions were scarce and Alexandria, 
across the river, was the principal source of sup- 
plies. 3 "My God! What have I done to reside in 
such a city," exclaimed a French diplomat. 4 Some 
months after the Chase impeachment 5 Senator 
Plumer described Washington as "a little village 
in the midst of the woods." 6 " Here I am in the 
wilderness of Washington," wrote Joseph Story in 
1808. 7 

Except a small Catholic chapel there was only 
one church building in the entire city, and this tiny 
wooden sanctuary was attended by a congregation 
which seldom exceeded twenty persons. 8 This ab- 
sence of churches was entirely in keeping with the 

killed me." (Bayard to Rodney, Feb. 24, 1804, N. Y. Library Bulle- 
tin, iv, 230.) 

1 Margaret Smith to Susan Smith, Dec. 26, 1802, Hunt, 33; also 
Mrs. Smith to her husband, July 8, 1803, ib. 41; and Gallatin to his 
wife, Aug. 17, 1802, Adams: Gallatin, 304-05. 

2 King to Gore, Aug. 20, 1803, Life and Correspondence of Rufus 
King: King, iv, 294; and see Adams: History of the United, States, 
iv, 31. 

3 Gallatin to his wife, Jan. 15, 1801, Adams: Gallatin, 253. 

4 Wharton: Social Life, 60. 5 See infra, chap. iv. 

6 Plumer to Lowndes, Dec. 30, 1805, Plumer: Life of William 
Plumer, 244. 

"The wilderness, alias the federal city." (Plumer to Tracy, May 2, 
1805, Plumer MSS. Lib. Cong.) 

7 Story to Fay, Feb. 16, 1808, Life and Letters of Joseph. Story: 
Story, i, 161. 

8 This was a little Presbyterian church building, which was 
abandoned after 1800. (Bryan, I, 232; and see Hunt, 13-14.) 



DEMOCRACY: JUDICIARY 7 

inclination of people of fashion. The first Republi- 
can administration came, testifies Winfield Scott, in 
"the spring tide of infidelity. . . At school and col- 
lege, most bright boys, of that day, affected to regard 
religion as base superstition or gross hypocricy." x 

Most of the Senators and Representatives of the 
early Congresses were crowded into the boarding- 
nouses adjacent to the Capitol, two and sometimes 
more men sharing the same bedroom. At Conrad 
and McMunn's boarding-house, where Gallatin lived 
when he was in the House, and where Jefferson 
boarded up to the time of his inauguration, the 
charge was fifteen dollars a week, which included 
service, "wood, candles and liquors." 2 Board at 
the Indian Queen cost one dollar and fifty cents a 
day, "brandy and whisky being free." 3 In some 
such inn the new Chief Justice of the United States, 
John Marshall, at first, found lodging. 

Everybody ate at one long table. At Conrad and 
McMunn's more than thirty men would sit down at 
the same time, and Jefferson, who lived there while 
he was Vice-President, had the coldest and lowest 
place at the table; nor was a better seat offered him 

1 Memoirs of Lieut. -General Scott, 9-10. Among the masses of the 
people, however, a profound religious movement was beginning. (See 
Semple : History of the Rue and Progress of the Baptists in Virginia; 
and Cleveland: Great Revival in the West.) 

A year or two later, religious services were held every Sunday after- 
noon in the hall of the House of Representatives, which always was 
crowded on these occasions. The throng did not come to worship, it 
appears; seemingly, the legislative hall was considered to be a con- 
venient meeting-place for gossip, flirtation, and social gayety. The 
plan was soon abandoned and the hall left entirely to profane usages 
(Bryan, I, 606-07.) 

2 Gallatin to his wife, Jan. 15, 1801, Adams: Gallatin, 253. 
» Wharton: Social Life, 72. 



8 JOHN MARSHALL 

on the day when he took the oath of office as Chief 
Magistrate of the Republic. 1 Those who had to rent 
houses and maintain establishments were in dis- 
tressing case. 2 So lacking were the most ordinary 
conveniences of life that a proposal was made in 
Congress, toward the close of Jefferson's first ad- 
ministration, to remove the Capital to Baltimore. 3 
An alternative suggestion was that the White House 
should be occupied by Congress and a cheaper build- 
ing erected for the Presidential residence. 4 

More than three thousand people drawn hither by 
the establishment of the seat of government man- 
aged to exist in "this desert city." 5 One fifth of 
these were negro slaves. 6 The population was made 
up of people from distant States and foreign coun- 
tries 7 — the adventurous, the curious, the restless, 
the improvident. The "city" had more than the 
usual proportion of the poor and vagrant who, "so 
far as I can judge," said Wolcott, "live like fishes 

1 Hunt, 12. 

2 See Merry to Hammond, Dec. 7, 1803, as quoted in Adams: 
U.S. ii, 362. 

Public men seldom brought their wives to Washington because of 
the absence of decent accommodations. (Mrs. Smith to Mrs. Kirk- 
patrick, Dec. 6, 1805, Hunt, 48.) 

"I do not perceive how the members of Congress can possibly se- 
cure lodgings, unless they will consent to live like scholars in a college 
or monks in a monastery, crowded ten or twenty in a house; and ut- 
terly excluded from society." (Wolcott to his wife, July 4, 1800, 
Gibbs, ii, 377.) 

3 Plumer to Thompson, March 19, 1804, Plumer MSS. Lib. Cong. 
And see Annals, 8th Cong. 1st Sess. 282-88. The debate is instructive. 
The bill was lost by 9 yeas to 19 nays. 

4 Hildreth: History of the United States, v, 516-17. 

5 Plumer to Lowndes, Dec. 30, 1805, Plumer, 337. 

6 Channing: History of the United States, iv, 245. 

7 Bryan, I, 438. 



DEMOCRACY: JUDICIARY 9 

by eating each other." l The sight of Washington 
filled Thomas Moore, the British poet, with con- 
tempt. 

"This embryo capital, where Fancy sees 
Squares in morasses, obelisks in trees; 
Where second-sighted seers, even now, adorn 
With shrines unbuilt and heroes yet unborn, 
Though nought but woods and Jefferson they see, 
Where streets should run and sages ought to be." 2 

Yet some officials managed to distill pleasure from 
materials which one would not expect to find in so 
crude a situation. Champagne, it appears, was 
plentiful. When Jefferson became President, that 
connoisseur of liquid delights 3 took good care that 
the "Executive Mansion" was well supplied with 
the choicest brands of this and many other wines. 4 
Senator Plumer testifies that, at one of Jefferson's 
dinners, "the wine was the best I ever drank, par- 
ticularly the champagne which was indeed deli- 
cious." 5 In fact, repasts where champagne was 
served seem to have been a favorite source of enjoy- 
ment and relaxation. 6 

1 Wolcott to his wife, July 4, 1800, Gibbs, n, 377. 

"The workmen are the refuse of that class and, nevertheless very 
high in their demands." (La Rochefoucauld-Liancourt: Travels 
Through the United States of North America, in, 650.) 

2 "To Thomas Hume, Esq., M.D.," Moore: Poetical Works, n, 83. 
8 See Jefferson to Short, Sept. 6, 1790, Works of Thomas Jefferson : 

Ford, vi, 146; same to Mrs. Adams, July 7, 1785, ib. rv, 432-33; same 
to Peters, June 30, 1791, ib. vi, 276; same to Short, April 24, 1792, ib. 
483; same to Monroe, May 26, 1795, ib. vin, 179; same to Jay, Oct. 
8, 1787, Memoir, Correspondence, and Miscellanies, from the Papers 
of Thomas Jefferson: Randolph, n, 249; also see Chastellux: Travels 
in North America in the Years 17 80S 1-82, 299. 

4 See Singleton: Story of the White House, I, 42-43. 

8 Plumer to his wife, Dec. 25, 1802, Plumer, 246. 

6 "Mr Granger [Jefferson's Postmaster-GeneralJ . . after a few 



10 JOHN MARSHALL 

Scattered, unformed, uncouth as Washington was, 
and unhappy and intolerable as were the condi- 
tions of living there, the government of the city was 
torn by warring interests. One would have thought 
that the very difficulties of their situation would 
have compelled some harmony of action to bring 
about needed improvements. Instead of this, each 
little section of the city fought for itself and was an- 
tagonistic to the others. That part which lay near 
the White House * strove exclusively for its own ad- 
vantage. The same was true of those who lived or 
owned property about Capitol Hill. There was, too, 
an "Alexandria interest" and a "Georgetown inter- 
est." These were constantly quarreling and each 
was irreconcilable with the other. 2 

In all respects the Capital during the first decades 
of the nineteenth century was a representation in 
miniature of the embryo Nation itself. Physical con- 
ditions throughout the country were practically the 
same as at the time of the adoption of the Constitu- 
tion; and popular knowledge and habits of thought 
had improved but slightly. 3 

A greater number of newspapers, however, had 
profoundly affected public sentiment, and demo- 
bottles of champagne were emptied, on the observation of Mr. Madi- 
son that it was the most delightful wine when drank in moderation, 
but that more than a few glasses always produced a headache the next 
day, remarked with point that this was the very time to try the experi- 
ment, as the next day being Sunday would allow time for a recovery 
from its effects. The point was not lost upon the host and bottle after 
bottle came in." (S. H. Smith to his wife, April 26, 1803, Hunt, 36.) 

1 At that time it was called "The Executive Mansion" or "The 
President's Palace." 

2 Bryan, I, 44; also see La Rochefoucauld-Liancourt, in, 642-51. 
8 See vol. r, chaps, vi and vn, of this work. 



DEMOCRACY: JUDICIARY 11 

cratic views and conduct had become riotously 
dominant. The defeated and despairing Federalists 
viewed the situation with anger and foreboding. 
Of all Federalists John Marshall and George Cabot 
were the calmest and wisest. Yet even they looked 
with gloom upon the future. "There are some ap- 
pearances which surprize me," wrote Marshall on 
the morning of Jefferson's inauguration to his in- 
timate friend, Charles Cotesworth Pinckney. 

"I wish, however, more than I hope that the public 
prosperity & happiness will sustain no diminution 
under Democratic guidance. The Democrats are 
divided into speculative theorists & absolute terror- 
ists. With the latter I am disposed to class Mr. Jef- 
ferson. If he ranges himself with them it is not diffi- 
cult to foresee that much difficulty is in store for our 
country — if he does not, they will soon become his 
enemies and calumniators." 1 

After Jefferson had been President for four 
months, Cabot thus interpreted the Republican vic- 
tory of 1800: "We are doomed to suffer all the evils 
of excessive democracy through the United States. . . 
Maratists and Robespierrians everywhere raise their 
heads. . . There will be neither justice nor stabil- 
ity in any system, if some material parts of it are 
not independent of popular control" 2 — an opinion 

1 Marshall to Pinckney, March 4, 1801, MS. furnished by Dr. 
W. S. Thayer of Baltimore. 

2 Cabot to Wolcott, Aug. 3, 1801, Lodge: Life and Letters of George 
Cabot, 322. 

George Cabot was the ablest, most moderate and far-seeing of the 
New England Federalists. He feared and detested what he called 
"excessive democracy" as much as did Ames, or Pickering, or Dwight, 
but, unlike his brother partisans, did not run to the opposite extreme 
himself and never failed to assert the indispensability of the democratic 



n JOHN MARSHALL 

which Marshall, speaking for the Supreme Court of 
the Nation, was soon to announce. 

Joseph Hale wrote to King that Jefferson's elec- 
tion meant the triumph of " the wild principles of up- 
roar & misrule" which would produce "anarchy." 1 
Sedgwick advised our Minister at London: "The 
aristocracy of virtue is destroyed." 2 In the course 
of a characteristic Federalist speech Theodore 
Dwight exclaimed: "The great object of Jacobinism 
is . . to force mankind back into a savage state. . . 
We have a country governed by blockheads and 
knaves; our wives and daughters are thrown into the 
stews. . . Can the imagination paint anything more 
dreadful this side of hell." 3 

The keen-eyed and thoughtful John Quincy 
Adams was of the opinion that "the basis of it all is 
democratic popularity. . . There never was a system 
of measures [Federalist] more completely and irrev- 
ocably abandoned and rejected by the popular 
voice. . . Its restoration would be as absurd as to 
undertake the resurrection of a carcass seven years in 
its grave." 4 A Federalist in the Commercial Gazette 
of Boston, 5 in an article entitled "Calm Reflections," 
mildly stated that "democracy teems with fanati- 

element in government. Cabot was utterly without personal ambition 
and was very indolent; otherwise he surely would have occupied a 
place in history equal to that of men like Madison, Gallatin, Hamilton, 
and Marshall. 

1 Hale to King, Dec. 19, 1801, King, iv, 39. 

2 Sedgwick to King, Dec. 14, 1801, ib. 34-35. 

3 Dwight's oration as quoted in Adams: U.S. I, 225. 

4 J. Q. Adams to King, Oct. 8, 1802, Writings of John Quincy Adams : 
Ford, hi, 8-9. Within six years Adams abandoned a party which offered 
such feeble hope to aspiring ambition. (See infra, chap. IX.) 

1 J. Russell's Gazette-Commercial and Political, January 28, 1799. 



DEMOCRACY: JUDICIARY 13 

cism." Democrats "love liberty . . and, like other 
lovers, they try their utmost to debauch . . their 
mistress." 

There was among the people a sort of diffused ego- 
tism which appears to have been the one character- 
istic common to Americans of that period. The most 
ignorant and degraded American felt himself far 
superior to the most enlightened European. "Be- 
hold the universe," wrote the chronicler of Congress 
in 1802. "See its four quarters filled with savages or 
slaves. Out of nine hundred millions of human be- 
ings but four millions [Americans] are free." * 

William Wirt describes the contrast of fact to pre- 
tension: "Here and there a stately aristocratick 
palace, with all its appurtenances, strikes the view : 
while all around for many miles, no other buildings 
are to be seen but the little smoky huts and log 
cabins of poor, laborious, ignorant tenants. And 
what is very ridiculous, these tenants, while they 
approach the great house, cap in hand, with all the 
fearful trembling submission of the lowest feudal 
vassals, boast in their court-yards, with obstreper- 
ous exultation, that they live in a land of freemen, a 
land of equal liberty and equal rights." 2 

1 History of the Last Session of Congress Which Commenced 7th Dec, 
1801 (taken from the National Intelligencer). Yet at that time in 
America manhood suffrage did not exist excepting in three States, a 
large part of the people could not read or write, imprisonment for 
debt was universal, convicted persons were sentenced to be whipped 
in public and subjected to other cruel and disgraceful punishments. 
Hardly a protest against slavery was made, and human rights as we 
now know them were in embryo, so far as the practice of them was 
concerned. 

2 Wirt: Letters of the British Spy, 10-11. 

These brilliant articles, written by Wirt when he was about thirty 



14 JOHN MARSHALL 

Conservatives believed that the youthful Repub- 
lic was doomed; they could see only confusion, de- 
struction, and decline. Nor did any nation of the 
Old World at that particular time present an exam- 
ple of composure and constructive organization. All 
Europe was in a state of strained suspense during the 
interval of the artificial peace so soon to end. "I 
consider the whole civilized world as metal thrown 
back into the furnace to be melted over again," 
wrote Fisher Ames after the inevitable resumption 
of the war between France and Great Britain. 1 
"Tremendous times in Europe!" exclaimed Jeffer- 
son when cannon again were thundering in every 
country of the Old World. "How mighty this battle 
of lions & tygers ! With what sensations should the 
common herd of cattle look upon it? With no par- 
tialities, certainly!" 2 

Jefferson interpreted the black forebodings of the 
defeated conservatives as those of men who had been 
thwarted in the prosecution of evil designs: "The 

years old, were published in the Richmond Argus during 1803. So 
well did they deceive the people that many in Gloucester and Nor- 
folk declared that they had seen the British Spy. (Kennedy: Me- 
moirs of the Life of William Wirt, I, 111, 113.) 

1 Ames to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. 
Soc. 

2 Jefferson to Rush, Oct. 4, 1803, Works: Ford, x, 32. 
Immediately after his inauguration, Jefferson restated the American 

foreign policy announced by Washington. It was the only doctrine on 
which he agreed with Marshall. 

"It ought to be the very first object of our pursuits to have nothing 
to do with European interests and politics. Let them be free or slaves 
at will, navigators or agricultural, swallowed into one government or 
divided into a thousand, we have nothing to fear from them in any 
form. . . To take part in their conflicts would be to divert our energies 
from creation to destruction." (Jefferson to Logan, March 21, 1801, 
Works: Ford, ix, 219-20.) 



DEMOCRACY: JUDICIARY 15 

clergy, who have missed their union with the State, 
the Anglo men, who have missed their union with 
England, the political adventurers who have lost the 
chance of swindling & plunder in the waste of public 
money, will never cease to bawl, on the breaking up 
of their sanctuary." x 

Of all the leading Federalists, John Marshall was 
the only one who refused to "bawl," at least in the 
public ear; and yet, as we have seen and shall again 
find, he entertained the gloomy views of his political 
associates. Also, he held more firmly than any prom- 
inent man in America to the old-time Federalist 
principle of Nationalism — a principle which with 
despair he watched his party abandon. 2 His whole 
being was fixed immovably upon the maintenance 
of order and constitutional authority. Except for his 
letter to Pinckney, Marshall was silent amidst the 
clamor. All that now went forward passed before 
his regretful vision, and much of it he was making 
ready to meet and overcome with the affirmative 
opinions of constructive judicial statesmanship. 

Meanwhile he discharged his duties — then very 
light — as Chief Justice. But in doing so, he quietly 
began to strengthen the Supreme Court. He did 

1 Jefferson to Postmaster-General (Gideon Granger), May 3, 1801, 
Works: Ford, ix, 249. 

The democratic revolution that overthrew Federalism was the 
beginning of the movement that finally arrived at the abolition of im- 
prisonment for debt, the bestowal of universal manhood suffrage, and 
in general, the more direct participation in every way of the masses 
of the people in their own government. But in the first years of Re- 
publican power there was a pandering to the crudest popular tastes 
and passions which, to conservative men, argued a descent to the 
sansculottism of France. 

2 See infra, chaps, m and vi; also vol. iv, chap. I. 



16 JOHN MARSHALL 

this by one of those acts of audacity that later 
marked the assumptions of power which rendered his 
career historic. For the first time the Chief Justice 
disregarded the custom of the delivery of opinions by 
the Justices seriatim, and, instead, calmly assumed 
the function of announcing, himself, the views of 
that tribunal. Thus Marshall took the first step in 
impressing the country with the unity of the high- 
est court of the Nation. He began this practice in 
Talbot vs. Seeman, familiarly known as the case of 
the Amelia, 1 the first decided by the Supreme Court 
after he became Chief Justice. 

During our naval war with France an armed 
merchant ship, the Amelia, owned by one Chapeau 
Rouge of Hamburg, while homeward bound from 
Calcutta, was taken by the French corvette, La 
Diligente. The Amelia's papers, officers, and crew 
were removed to the French vessel, a French crew 
placed in charge, and the captured ship was sent to 
St. Domingo as a prize. On the way to that French 
port, she was recaptured by the American frigate, 
Constitution, Captain Silas Talbot, and ordered to 
New York for adjudication. The owner demanded 
ship and cargo without payment of the salvage 
claimed by Talbot for his rescue. The case finally 
reached the Supreme Court. 

In the course of a long and careful opinion the 
Chief Justice held that, although there had been no 
formal declaration of war on France, yet particular 
acts of Congress had authorized American warships 
to capture certain French vessels and had provided 
1 1 Cranch, 1 et seq. 



DEMOCRACY: JUDICIARY 17 

for the payment of salvage to the captors. Virtually, 
then, we were at war with France. While the Ame- 
lia was not a French craft, she was, when captured 
by Captain Talbot, "an armed vessel commanded 
and manned by Frenchmen," and there was "prob- 
able cause to believe" that she was French. So her 
capture was lawful. 

Still, the Amelia was not, in fact, a French vessel, 
but the property of a neutral; and in taking her 
from the French, Talbot had, in reality, rescued the 
ship and rendered a benefit to her owners for which 
he was entitled to salvage. For a decree of the 
French Republic made it "extremely probable" 
that the Amelia would be condemned by the French 
courts in St. Domingo; and that decree, having been 
"promulgated" by the American Government, 
must be considered by American courts "as an 
authenticated copy of a public law of France inter- 
esting to all nations." This, said Marshall, was "the 
real and only question in the case." The first opinion 
delivered by Marshall as Chief Justice announced, 
therefore, an important rule of international law and 
is of permanent value. 

Marshall's next case 1 involved complicated ques- 
tions concerning lands in Kentucky. Like nearly all 
of his opinions, the one in this case is of no historical 
importance except that in it he announced for the 
second time the views of the court. In United 
States vs. Schooner Peggy, 2 Marshall declared that, 
since the Constitution makes a treaty a "supreme 
law of the land," courts are as much bound by it as 

1 Wilson vs. Mason, 1 Cranch, 45-101. 2 1 Cranch, 102-10. 



18 JOHN MARSHALL 

by an act of Congress. This was the first time that 
principle was stated by the Supreme Court. An- 
other case 1 concerned the law of practice and of 
evidence. This was the last case in which Marshall 
delivered an opinion before the Republican assault 
on the Judiciary was made — the causes of which 
assault we are now to examine. 

At the time of his inauguration, Jefferson appar- 
ently meant to carry out the bargain 2 by which his 
election was made possible. "We are all Republi- 
cans, we are all Federalists," were the reassuring 
words with which he sought to quiet those who al- 
ready were beginning to regret that they had yielded 
to his promises. 3 Even Marshall was almost favor- 
ably impressed by the inaugural address. "I have 
administered the oath to the Presdt.," he writes 
Pinckney immediately after Jefferson had been in- 
ducted into office. "His inauguration speech . . is in 
general well judged and conciliatory. It is in direct 
terms giving the lie to the violent party declamation 
which has elected him, but it is strongly characteris- 
tic of the general cast of this political theory." 4 

It is likely that, for the moment, the President 
intended to keep faith with the Federalist leaders. 
But the Republican multitude demanded the spoils 
of victory; and the Republican leaders were not 
slow or soft-spoken in telling their chieftain that he 
must take those measures, the assurance of which 

1 Turner vs. Fendall, 1 Cranch, 115-30. 

2 See vol. ii, 531-47, of this work. 

3 See Adams: U.S. i, chaps, rx and x, for account of the revolution' 
ary measures which the Republicans proposed to take. 

4 Marshall to Pinckney, March 4, 1801, " four o'clock," MS. 



DEMOCRACY: JUDICIARY 19 

had captivated the popular heart and given "the 
party of the people" a majority in both House and 
Senate. 

Thus the Republican programme of demolition 
was begun. Federalist taxes were, of course, to 
be abolished; the Federalist mint dismantled; the 
Federalist army disbanded; the Federalist navy 
beached. Above all, the Federalist system of Na- 
tional courts was to be altered, the newly appointed 
Federalist National judges ousted and their places 
given to Republicans; and if this could not be ac- 
complished, at least the National Judiciary must be 
humbled and cowed. Yet every step must be taken 
with circumspection — the cautious politician at 
the head of the Government would see to that. No 
atom of party popularity 1 must be jeopardized; 
on the contrary, Republican strength must be in- 
creased at any cost, even at the temporary sacrifice 
of principle. 2 Unless these facts are borne in mind, 
the curious blending of fury and moderation — of 
violent attack and sudden quiescence — in the Re- 

1 "It is the sole object of the Administration to acquire popularity." 
(Wolcott to Cabot, Aug. 28, 1802, Lodge: Cabot, 325.) 

"The President has . . the itch for popularity." (J. Q. Adams to 
his father, November, 1804, Writings, J. Q. A.: Ford, in, 81.) 

" The mischiefs of which his immoderate thirst for . . popularity are 
laying the foundation, are not immediately perceived." (Adams to 
Quincy, Dec. 4, 1804, Quincy, 64.) 

"It seems to be a great primary object with him never to pursue a 
measure if it becomes unpopular." (Plumer's Diary, March 4, 1805, 
Plumer MSS. Lib. Cong.) 

" In dress, conversation, and demeanor he studiously sought and 
displayed the arts of a low demagogue seeking the gratification of 
the democracy on whose voices and votes he laid the foundation of 
his power." (Quincy's Diary, Jan. 1806, Quincy, 93.) 

2 Ames to Gore, Dec. 13, 1802, Works of Fisher Ames: Ames, L 30a 



20 JOHN MARSHALL 

publican tactics during the first years of Jefferson's 
Administration are inexplicable. 

Jefferson determined to strike first at the National 
Judiciary. He hated it more than any other of the 
"abominations" of Federalism. It was the only 
department of the Government not yet under his 
control. His early distrust of executive authority, 
his suspicion of legislative power when his political 
opponents held it, were now combined against the 
National courts which he did not control. 

Impotent and little respected as the Supreme 
Court had been and still was, Jefferson nevertheless 
entertained an especial fear of it; and this feeling 
had been made personal by the thwarting of his 
cherished plan of appointing his lieutenant, Spencer 
Roane of Virginia, Chief Justice of the United 
States. 1 The elevation of his particular aversion, 
John Marshall, to that office, had, he felt, wickedly 
robbed him of the opportunity to make the new 
regime harmonious; and, what was far worse, it had 
placed in that station of potential, if as yet unde- 
veloped, power, one who, as Jefferson had finally 
come to think, might make the high court of the 
Nation a mighty force in the Government, retard 
fundamental Republican reforms, and even bring to 
naught measures dear to the Republican heart. 

It seems probable that, at this time, Jefferson was 
the only man who had taken Marshall's measure 
correctly. His gentle manner, his friendliness and 
conviviality, no longer concealed from Jefferson the 

1 Dodd in American Historical Review, xu, 776; and see next 
chapter. 



DEMOCRACY: JUDICIARY 21 

courage and determination of his great relative; and 
Jefferson doubtless saw that Marshall, with his uni- 
versally conceded ability, would find means to vital- 
ize the National Judiciary, and with his fearlessness, 
would employ those means. 

"The Federalists," wrote Jefferson, "have retired 
into the judiciary as a stronghold . . and from that 
battery all the works of republicanism are to be 
beaten down and erased." * Therefore that strong- 
hold must be taken. Never was a military plan more 
carefully devised than was the Republican method 
of capturing it. Jefferson would forthwith remove 
all Federalist United States marshals and attor- 
neys; 2 he would get rid of the National judges whom 
Adams had appointed under the Judiciary Act of 
1801. 3 If this did not make those who remained on 
the National Bench sufficiently tractable, the sword 
of impeachment would be held over their obstinate 
heads until terror of removal and disgrace should 
render them pliable to the dominant political will. 

1 Jefferson to Dickinson, Dec. 19, 1801, Writings of Thomas Jeffer- 
son: Washington, iv, 424. 

2 "The only shield for our Republican citizens against the federal- 
ism of the courts is to have the attorneys & Marshals republicans." 
(Jefferson to Stuart, April 8, 1801, Works: Ford, ex, 248.) 

3 "The judge of course stands until the law [Judiciary Act of 1801] 
shall be repealed which we trust will be at the next Congress." (Jeffer- 
son to Stuart, April 8, 1801, Works: Ford, ix, 247.) For two weeks 
Jefferson appears to have been confused as to the possibility of 
repealing the Judiciary Act of 1801. A fortnight before he informed 
Stuart that this course would be taken, he wrote Giles that "the 
courts being so decidedly federal and irremovable," it was "indis- 
pensably necessary" to appoint "republican attorneys and mar- 
shals." (Jefferson to Giles, March 23, 1801, MSS. Lib. Cong, as 
quoted by Carpenter in American Political Science Review, ix, 522.) 

But the repeal had been determined upon within six weeks after 
Jefferson's inauguration as his letter to Stuart shows. 



22 JOHN MARSHALL 

Thus by progressive stages the Supreme Court would 
be brought beneath the blade of the executioner and 
the obnoxious Marshall decapitated or compelled to 
submit. 

To this agreeable course, so well adapted to his 
purposes, the President was hotly urged by the fore- 
most leaders of his party. Within two weeks after 
Jefferson's inauguration, the able and determined 
William Branch Giles of Virginia, faithfully inter- 
preting the general Republican sentiment, demanded 
"the removal of all its [the Judiciary's] executive 
officers indiscriminately." This would get rid of the 
Federalist marshals and clerks of the National courts; 
they had been and were, avowed Giles, "the humble 
echoes" of the "vicious schemes" of the National 
judges, who had been "the most unblushing viola- 
tors of constitutional restrictions." 1 Again Giles 
expressed the will of his party: "The revolution 
[Republican success in 1800] is incomplete so long as 
that strong fortress [the Judiciary] is in possession 
of the enemy." He therefore insisted upon "the 
absolute repeal of the whole judiciary system." 2 

The Federalist leaders quickly divined the first 
part of the Republican purpose: "There is nothing 
which the [Republican] party more anxiously wish 
than the destruction of the judicial arrangements 
made during the last session," wrote Sedgwick. 3 
And Hale, with dreary sarcasm, observed that "the 
independence of our Judiciary is to be confirmed 

1 Giles to Jefferson, March 16,1801, Anderson: William Branch 
Giles — A Study in the Politics of Virginia 1790-1830, 77. 

2 Same to same, June 1, 1801, ib. 80. 

3 Sedgwick to King, Dec. 14, 1801, King, iv, 36. 



DEMOCRACY: JUDICIARY 23 

by being made wholly subservient to the will of the 
legislature & the caprice of Executive visions." * 

The judges themselves had invited the attack so 
soon to be made upon them. 2 Immediately after the 
Government was established under the Constitution, 
they took a position which disturbed a large part of 
the general public, and also awakened apprehensions 
in many serious minds. Persons were haled before 
the National courts charged with offenses unknown 
to the National statutes and unnamed in the Consti- 
tution; nevertheless, the National judges held that 
these were indictable and punishable under the com- 
mon law of England. 3 

This was a substantial assumption of power. The 
Judiciary avowed its right to pick and choose among 
the myriad of precedents which made up the com- 
mon law, and to enforce such of them as, in the opin- 
ion of the National judges, ought to govern Ameri- 
can citizens. In a manner that touched directly the 
lives and liberties of the people, therefore, the judges 

1 Hale to King, Dec. 19, 1801, King, iv, 39. 

2 It must be carefully kept in mind that from the beginning of the 
Revolution most of the people were antagonistic to courts of any 
kind, and bitterly hostile to lawyers. (See vol. I, 297-99, of this 
work.) 

Braintree, Mass., in 1786, in a town meeting, denounced lawyers 
and demanded by formal resolution the enactment of "such laws . . 
as may crush or, at least, put a proper check of restraint" upon them. 

Dedham, Mass., instructed its members of the Legislature to se- 
cure the passage of laws that would "check" attorneys; and if this 
were not practicable, then "you are to endeavor [to pass a bill declar- 
ing] that the order of Lawyers be totally abolished." (Warren : History 
of the American Bar, 215.) All this, of course, was the result of the 
bitter hardships of debtors. 

3 For an able defense of the adoption by the National courts of 
the British common law, see Works of the Honourable James Wilson: 
Wilson, in, 384. 



24 JOHN MARSHALL 

became law-givers as well as law-expounders. Not 
without reason did the Republicans of Boston drink 
with loud cheers this toast: "The Common Law of 
England! May wholesome statutes soon root out 
this engine of oppression from America." 1 

The occasions that called forth this exercise of 
judicial authority were the violation of Washing- 
ton's Neutrality Proclamation, the violation of the 
Treaty of Peace with Great Britain, and the number- 
less threats to disregard both. From a strictly legal 
point of view, these indeed furnished the National 
courts with plausible reasons for the position they 
took. Certainly the judges were earnestly patriotic 
and sincere in their belief that, although Congress 
had not authorized it, nevertheless, that accumula- 
tion of British decisions, usages, and customs called 
" the common law " was a part of American National 
jurisprudence; and that, of a surety, the assertion of 
it in the National tribunals was indispensable to the 
suppression of crimes against the United States. In 
charging the National grand jury at Richmond, May 
22, 1793, Chief Justice John Jay first announced this 
doctrine, although not specifically naming the com- 
mon law. 2 Two months later, Justice James Wilson 
claimed the same inclusive power in his address to 
the grand jury at Philadelphia. 3 

In 1793, Joseph Ravara, consul for Genoa, was in- 

1 Columbian Centinel, July 11, 1801, as quoted in Warren, 225-27. 

2 Correspondence and Public Papers of John Jay: Johnston, in, 
478-85. 

3 Wharton: State Trials of the U.S. during the Administrations of 
Washington and Adams, 60 et seq.\ and see Wilson's law lecture on 
the subject, Wilson, in, 384. 



DEMOCRACY: JUDICIARY 25 

dieted in the United States District Court of Penn- 
sylvania for sending an anonymous and threaten- 
ing letter to the British Minister and to other persons 
in order to extort money from them. There was not 
a word in any act of Congress that referred even in- 
directly to such a misdemeanor, yet Justices Wilson 
and Iredell of the Supreme Court, with Judge Peters 
of the District Court, held that the court had juris- 
diction, 1 and at the trial Chief Justice Jay and Dis- 
trict Judge Peters held that the rash Genoese could 
be tried and punished under the common law of 
England. 2 

Three months later Gideon Henfield was brought 
to trial for the violation of the Neutrality Proclama- 
tion. The accused, a sailor from Salem, Massachu- 
setts, had enlisted at Charleston, South Carolina, on 
a French privateer and was given a commission as 
an officer of the French Republic. As such he preyed 
upon the vessels of the enemies of France. One 
morning in May, 1793, Captain Henfield sailed into 
the port of Philadelphia in charge of a British prize 
captured by the French privateer which he com- 
manded. 

Upon demand of the British Minister, Henfield 
was seized, indicted, and tried in the United States 
Circuit Court for the District of Pennsylvania. 3 In 
the absence of any National legislation covering the 

1 2 Dallas, 297-99. 

2 lb. Ravara was tried and convicted by the jury under the in- 
structions of the bench, "but he was afterward pardoned on condi- 
tion that he surrender his commission and Exequatur." (Wharton: 
State Trials, 90-92.) 

3 For the documents preceding the arrest and prosecution of Hen- 
6eld, see Wharton: State Trials, footnotes to 49-52. 



26 JOHN MARSHALL 

subject, Justice Wilson instructed the grand jury 
that Henfield could, and should, be indicted and 
punished under British precedents. 1 When the case 
was heard the charge of the court to the trial jury- 
was to the same effect. 2 

The jury refused to convict. 3 The verdict was 
"celebrated with extravagant marks of joy and exul- 
tation," records Marshall in his account of this mem- 
orable trial. "It was universally asked," he says, 
"what law had been offended, and under what stat- 
ute was the indictment supported? Were the Ameri- 
can people already prepared to give to a proclamation 
the force of a legislative act, and to subject them- 
selves to the will of the executive? But if they were 
already sunk to such a state of degradation, were 
they to be punished for violating a proclamation 
which had not been published when the offense was 
committed, if indeed it could be termed an offense 
to engage with France, combating for liberty against 
the combined despots of Europe?" 4 

In this wise, political passions were made to 
strengthen the general protest against riveting the 
common law of England upon the American people 
by judicial fiat and without authorization by the 
National Legislature. 

Isaac Williams was indicted and tried in 1799, in 
the United States Circuit Court for the District of 

1 See Wilson's charge, Wharton: State Trials, 59-66. 

2 See Wharton's summary of Wilson's second charge, ib. footnote 
to 85. 

3 Ib. 88. 

4 Marshall : Life of George Washington, 2d ed. n, 273-74. After the 
Henfield and Ravara cases, Congress passed a law applicable to such 
offenses. (See Wharton: State Trials, 93-101.) 



DEMOCRACY: JUDICIARY 27 

Connecticut, for violating our treaty with Great 
Britain by serving as a French naval officer. Wil- 
liams proved that he had for years been a citizen of 
France, having been "duly naturalized" in France, 
"renouncing his allegiance to all other countries, 
particularly to America, and taking an oath of alle- 
giance to the Republic of France." Although these 
facts were admitted by counsel for the Government, 
and although Congress had not passed any statute 
covering such cases, Chief Justice Oliver Ellsworth 
practically instructed the jury that under the Brit- 
ish common law Williams must be found guilty. 

No American could cease to be a citizen of his 
own country and become a citizen or subject of an- 
other country, he said, "without the consent . . of 
the community." x The Chief Justice announced as 
American law the doctrine then enforced by Euro- 
pean nations — • "born a subject, always a subject." 2 
So the defendant was convicted and sentenced "to 
pay a fine of a thousand dollars and to suffer four 
months imprisonment." 3 

These are examples of the application by the Na- 
tional courts of the common law of England in cases 

1 Wharton: State Trials, 653-54. 

2 This was the British defense for impressment of seamen on 
American ships. It was one of the chief points in dispute in the War of 
1812. The adherence of Federalists to this doctrine was one of the 
many causes of the overthrow of that once great party. (See infra, 
vol. rv, chap, i, of this work.) 

3 Wharton: State Trials, 654. Upon another indictment for having 
captured a British ship and crew, Williams, with no other defense 
than that offered on his trial under the first indictment, pleaded 
guilty, and was sentenced to an additional fine of a thousand dol- 
lars, and to further imprisonment of four months. (lb.; see also voL 
u, 495, of this work.) 



28 JOHN MARSHALL 

where Congress had failed or refused to act. Crime 
must be punished, said the judges; if Congress would 
not make the necessary laws, the courts would act 
without statutory authority. Until 1812, when the 
Supreme Court put an end to this doctrine, 1 the 
National courts, with one exception, 2 continued to 
apply the common law to crimes and offenses which 
Congress had refused to recognize as such, and for 
which American statutes made no provision. 

Practically all of the National and many of the 
State judges were highly learned in the law, and, of 
course, drew their inspiration from British prece- 
dents and the British bench. Indeed, some of them 
were more British than they were American. 3 "Let 
a stranger go into our courts,' wrote Tyler, "and he 

1 U.S. vs. Hudson, 7 Cranch, 32-34. "Although this question is 
brought up now for the first time to be decided by this court, we con- 
sider it as having been long since settled in public opinion. . . The leg- 
islative authority of the Union must first make an act a crime, affix a 
punishment to it and declare the court that shall have jurisdiction of 
the offense." (Justice "William Johnson delivering the opinion of the 
majority of the court, ib.) 

Joseph Story was frantic because the National judges could not 
apply the common law during the War of 1812. (See his passionate 
letters on the subject, vol. iv, chap, i, of this work; and see his 
argument for the common law, Story, i, 297-300; see also Peters to 
Pickering, Dec. 5, 1807, March 30, and April 14, 1816, Pickering 
MSS. Mass. Hist. Soc.) 

2 The opinion of Justice Chase, of the Supreme Court of Philadel- 
phia, sitting with Peters, District Judge, in the case of the United 
States vs. Robert Worral, indicted under the common law for attempt- 
ing to bribe a United States officer. Justice Chase held that English 
common law was not a part of the jurisprudence of the United States 
as a Nation. (Wharton: State Trials, 189-99.) 

3 This was notably true of Justice James Wilson, of the Supreme 
Court, and Alexander Addison, President Judge of the Fifth Pennsyl- 
vania (State) Circuit, both of whom were born and educated in the 
United Kingdom. They were two of the ablest and most learned men 
on the bench at that period. 



DEMOCRACY: JUDICIARY 29 

would almost believe himself in the Court of the 
King's Bench." » 

This conduct of the National Judiciary furnished 
Jefferson with another of those "issues" of which 
that astute politician knew how to make such effec- 
tive use. He quickly seized upon it, and with char- 
acteristic fervency of phrase used it as a powerful 
weapon against the Federalist Party. All the evil 
things accomplished by that organization of "mono- 
crats," "aristocrats," and "monarchists" — the 
bank, the treaty, the Sedition Act, even the army 
and the navy — • "have been solitary, inconsequen- 
tial, timid things," avowed Jefferson, "in compari- 
son with the audacious, barefaced and sweeping pre- 
tension to a system of law for the U.S. without the 
adoption of their legislature, and so infinitely beyond 
their power to adopt." 2 

But if the National judges had caused alarm by 
treating the common law as though it were a statute 
of the United States without waiting for an act of 
Congress to make it so, their manners and methods 
in the enforcement of the Sedition Act 3 aroused 
against them an ever-increasing hostility. 

Stories of their performances on the bench in such 
cases — their tones when speaking to counsel, to 
accused persons, and even to witnesses, their immod- 
erate language, their sympathy with one of the 
European nations then at war and their animosity 

1 Message of Governor John Tyler, Dec. 3, 1810, Tyler: Letters 
and Times of the Tylers, I, 261; and see Tyler to Monroe, Dec. 4, 
1809, ib. 232. 

2 Jefferson to Randolph, Aug. 18, 1799, Works: Ford, IX, 73. 

3 See vol. ii, chaps, x and xi, of this work. 



30 JOHN MARSHALL 

toward the other, their partisanship in cases on trial 
before them — tales made up from such material 
flew from mouth to mouth, until finally the very 
name and sight of National judges became obnoxious 
to most Americans. In short, the assaults upon the 
National Judiciary were made possible chiefly by 
the conduct of the National judges themselves. 1 

The first man convicted under the Sedition Law 
was a Representative in Congress, the notorious 
Matthew Lyon of Vermont. He had charged Presi- 
dent Adams with a "continual grasp for power . . 
an unbounded thirst for ridiculous pomp, foolish 
adulation and selfish avarice." Also, Lyon had 
permitted the publication of a letter to him from 
Joel Barlow, in which the President's address to the 
Senate and the Senate's response 2 were referred 
to as "the bullying speech of your President" and 
"the stupid answer of your Senate"; and expressed 
wonder "that the answer of both Houses had not 

1 The National judges, in their charges to grand juries, lectured 
and preached on religion, on morality, on partisan politics. 

"On Monday last the Circuit Court of the United States was opened 
in this town. The Hon. Judge Patterson . . delivered a most elegant 
and appropriate charge. 

"The Law was laid down in a masterly manner: Politics were set in 
their true light by holding up the Jacobins [Republicans] as the disor- 
ganizes of our happy country, and the only instruments of introduc- 
ing discontent and dissatisfaction among the well meaning part of the 
community. Religion & Morality were pleasingly inculcated and en- 
forced as being necessary to good government, good order, and good 
laws; for 'when the righteous [Federalists] are in authority, the people 
rejoice.' . . 

"After the charge was delivered the Rev. Mr. Alden addressed the 
Throne of Grace in an excellent and well adapted prayer." {United 
States Oracle of the Day, May 24, 1800, as quoted by Hackett, in 
Green Bag, n, 264.) 

2 Adams's War Speech of 1798; see vol. n, 351, of this work. 



DEMOCRACY: JUDICIARY 31 

been an order to send him [Adams] to the mad 
house." x 

Lyon was indicted under the accusation that he 
had tried "to stir up sedition and to bring the Presi- 
dent and Government of the United States into con- 
tempt." He declared that the jury was selected from 
his enemies. 2 Under the charge of Justice Paterson 
of the Supreme Court he was convicted. The court 
sentenced him to four months in jail and the pay- 
ment of a fine of one thousand dollars. 3 

In the execution of the sentence, United States 
Marshal Jabez G. Fitch used the prisoner cruelly. 
On the way to the jail at Vergennes, Vermont, he 
was repeatedly insulted. He was finally thrown into 
a filthy, stench-filled cell without a fireplace and 
with nothing "but the iron bars to keep the cold 
out." It was "the common receptacle for horse- 
thieves . . runaway negroes, or any kind of felons." 
He was subjected to the same kind of treatment that 
was accorded in those days to the lowest criminals. 4 
The people were deeply stirred by the fate of Mat- 
thew Lyon. Quick to realize and respond to public 
feeling, Jefferson wrote: "I know not which mortifies 
me most, that I should fear to write what I think, or 
my country bear such a state of things." 5 

One Anthony Haswell, editor of the Vermont Ga- 

1 Wharton: State Trials, 333-34. 2 lb. 339. 

3 lb. 337. Paterson sat with District Judge Hitchcock and de- 
livered the cnarge in this case. Luther Martin in the trial of Justice 
Chase (see infra, chap, iv) said that Paterson was "mild and amia- 
ble," and noted for his "suavity of manners." (Trial of the Hon. 
Samuel Chase: Evans, stenographer, 187-88.) 

4 See Lyon to Mason, Oct. 14, 1798, Wharton: State Trials, 339-41. 
6 Jefferson to Taylor, Nov. 26, 1798, Jefferson MSS. Lib. Cong. 



32 JOHN MARSHALL 

zette published at Bennington, printed an advertise- 
ment of a lottery by which friends of Lyon, who was 
a poor man, hoped to raise enough money to pay his 
fine. This advertisement was addressed "to the ene- 
mies of political persecutions in the western district 
of Vermont." It was asserted that Lyon "is holden 
by the oppressive hand of usurped power in a loath- 
some prison, deprived almost of the right of reason, 
and suffering all the indignities which can be heaped 
upon him by a hard-hearted savage, who has, to the 
disgrace of Federalism, been elevated to a station 
where he can satiate his barbarity on the misery of 
his victims." x The "savage" referred to was United 
States Marshal Fitch. In the same paper an excerpt 
was reprinted from the Aurora which declared that 
"the administration publically notified that Tories 
. . were worthy of the confidence of the govern- 
ment." 2 

Haswell was indicted for sedition. In defense he 
established the brutality with which Lyon had been 
treated and proposed to prove by two witnesses 
not then present (General James Drake of Virginia, 
and James McHenry, President Adams's Secretary 
of War) that the Government favored the occasional 
appointment of Tories to office. Justice Paterson 
ruled that such evidence was inadmissible, and 
charged the jury that if HaswelPs intent was de- 
famatory, he should be found guilty. Thereupon 
he was convicted and sentenced to two months' 
imprisonment and the payment of a fine of two 
hundred dollars. 3 

1 Wharton: State Trials, 684. 2 lb. 685. 3 lb. 685-86. 



DEMOCRACY: JUDICIARY 33 

Dr. Thomas Cooper, editor of the Sunbury and 
Northumberland Gazette in Pennsylvania, in the 
course of a political controversy declared in his 
paper that when, in the beginning of Adams's Ad- 
ministration, he had asked the President for an 
office, Adams "was hardly in the infancy of political 
mistake; even those who doubted his capacity 
thought well of his intentions. . . Nor were we yet 
saddled with the expense of a permanent navy, or 
threatened . . with the existence of a standing army. 
. . Mr. Adams . . had not yet interfered . . to influ- 
ence the decisions of a court of justice." 1 

For this "attack" upon the President, Cooper was 
indicted under the Sedition Law. Conducting his 
own defense, he pointed out the issues that divided 
the two great parties, and insisted upon the propri- 
ety of such political criticism as that for which he 
had been indicted. 

Cooper was himself learned in the law, 2 and during 
the trial he applied for a subpoena duces tecum to com- 
pel President Adams to attend as a witness, bringing 
with him certain documents which Cooper alleged to 
be necessary to his defense. In a rage Justice Samuel 
Chase of the Supreme Court, before whom, with 
Judge Richard Peters of the District Court, the case 
was tried, refused to issue the writ. For this he was 
denounced by the Republicans. In the trial of Aaron 
Burr, Marshall was to issue this very writ to Presi- 
dent Thomas Jefferson and, for doing so, to be re- 
buked, denounced, and abused by the very parti- 

1 Wharton : State Trials, 661-62. Cooper was referring to the case 
of Jonathan Robins. (See vol. n, 458-75, of this work.) 

2 Cooper afterward became a State judge. 



34 JOHN MARSHALL 

sans who now assailed Justice Chase for refusing to 
grant it. 1 

Justice Chase charged the jury at intolerable 
length: "If a man attempts to destroy the confidence 
of the people in their officers . . he effectually saps the 
foundation of the government." It was plain that 
Cooper "intended to provoke" the Administration, 
for had he not admitted that, although he did not 
arraign the motives, he did mean "to censure the 
conduct of the President " ? The offending editor's 
statement that "our credit is so low that we are 
obliged to borrow money at 8 per cent, in time of 
peace," especially irritated the Justice. "I cannot," 
he cried, "suppress my feelings at this gross attack 
upon the President." Chase then told the jury that 
the conduct of France had "rendered a loan neces- 
sary"; that undoubtedly Cooper had intended "to 
mislead the ignorant . . and to influence their votes 
on the next election." 

So Cooper was convicted and sentenced "to pay 
a fine of four hundred dollars, to be imprisoned for 
six months, and at the end of that period to find 
surety for his good behavior himself in a thousand, 
and two sureties in five hundred dollars each." 2 

"Almost every other country" had been "con- 
vulsed with . . war," desolated by "every species of 
vice and disorder" which left innocence without 
protection and encouraged "the basest crimes." 
Only in America there was no "grievance to com- 
plain of." Yet our Government had been "as 

1 See infra, chap. vin. 

2 Wharton: State Trials, 679. Stephen Girard paid Cooper's fine. 
(McMaster: Life and Times of Stephen Girard, i, 397-98.) 



DEMOCRACY: JUDICIARY 35 

grossly abused as if it had been guilty of the vilest 
tyranny" — as if real "republicanism" could "only 
be found in the happy soil of France" where "Lib- 
erty, like the religion of Mahomet, is propagated by 
the sword." In the "bosom" of that nation "a dag- 
ger was concealed." x In these terms spoke James 
Iredell, Associate Justice of the Supreme Court, 
in addressing the grand jury for the District of 
Pennsylvania. He was delivering the charge that 
resulted in the indictment for treason of John 
Fries and others who had resisted the Federalist 
land tax. 2 

The triumph of France had, of course, nothing 
whatever to do with the forcible protest of the Penn- 
sylvania farmers against what they felt to be Fed- 
eralist extortion; nevertheless upon the charge of 
Justice Iredell as to the law of treason, they were 
indicted and convicted for that gravest of all of- 
fenses. A new trial was granted because one of the 
jury, John Rhoad, "had declared a prejudice against 
the prisoner after he was summoned as a juror." 3 On 
April 29, 1800, the second trial was held. This time 
Justice Chase presided. The facts were agreed to by 
counsel. Before the jury had been sworn, Chase 
threw on the table three papers in writing and an- 
nounced that these contained the opinion of the 
judges upon the law of treason — one copy was for 
the counsel for the Government, one for the defend- 
ant's counsel, and one for the jury. 

William Lewis, leading attorney for Fries, and one 

1 Wharton: State Trials, 466-69. 

2 See vol. II, 429 et seq. of this work. 
» Wharton: State Trials, 598-609. 



36 JOHN MARSHALL 

of the ablest members of the Philadelphia bar, 1 was en- 
raged. He looked upon the paper, flung it from him, 
declaring that "his hand never should be polluted 
by a prejudicated opinion," and withdrew from the 
case, although Chase tried to persuade him to "go 
on in any manner he liked." Alexander J. Dallas, 
the other counsel for Fries, also withdrew, and the 
terrified prisoner was left to defend himself. The 
court told him that the judges, personally, would see 
that justice was done him. Again Fries and his accom- 
plices were convicted under the charge of the court. 
"In an aweful and affecting manner" 2 Chase pro- 
nounced the sentence, which was that the condemned 
men should be "hanged by the neck until dead." 3 

The Republicans furiously assailed this conviction 
and sentence. President Adams pardoned Fries and 
his associates, to the disgust and resentment of the 
Federalist leaders. 4 On both sides the entire pro- 
ceeding was made a political issue. 

On the heels of this "repetition of outrage," as the 
Republicans promptly labeled the condemnation of 
Fries, trod the trial of James Thompson Callender 
for sedition, over which it was again the fate of 
the unlucky Chase to preside. The Prospect Before 
Us, written by Callender under the encouragement 
of Jefferson, 5 contained a characteristically vicious 

1 For sketch of Lewis see Wharton: State Trials, 32-33. 

2 Independent Chronicle, Boston, May 12, 1800. 

3 Wharton: State Trials, 641 et seq. 

4 See vol. n, 429 et seq. of this work. 

B Jefferson to Mason, Oct. 11, 1798, Works: Ford, viii, 449-50; 
same to Callender, Sept. 6, 1799, ib. ix, 81-82; same to same, Oct. 6, 
1799, ib. 83-84; Pickering to Higginson, Jan. 6, 1804, Pickering MSS. 
Mass. Hist. Soc. 



DEMOCRACY: JUDICIARY 37 

screed against Adams. His Administration had been 
"a tempest of malignant passions"; his system had 
been "a French war, an American navy, a large 
standing army, an additional load of taxes." He 
: 'was a professed aristocrat and he had proved faith- 
ful and serviceable to the British interest" by send- 
ing Marshall and his associates to France. In the 
President's speech to Congress, 1 "this hoary headed 
incendiary . . bawls to arms! then to arms!" 

Callender was indicted for libel under the Sedi- 
tion Law. 

Before Judge Chase started for Virginia, Luther 
Martin had given him a copy of Callender's pam- 
phlet, with the offensive passages underscored. Dur- 
ing a session of the National court at Annapolis, 
Chase, in a "jocular conversation," had said that he 
would take Callender's book with him to Richmond, 
and that, "if Virginia was not too depraved" to fur- 
nish a jury of respectable men, he would certainly 
punish Callender. He would teach the lawyers of 
Virginia the difference between the liberty and the 
licentiousness of the press. 2 On the road to Rich- 
mond, James Triplett boarded the stage that carried 
the avenging Justice of the Supreme Court. He 
told Chase that Callender had once been arrested 
in Virginia as a vagrant. "It is a pity," replied 
Chase, "that they had not hanged the rascal." 3 

1 War speech of Adams to Congress in 1798, see vol. n, 351, of 
this work. 

* Testimony of James Winchester (Annals, 8th Cong. 2d Sess. 
246-47); of Luther Martin (ib. 245-46); and of John T. Mason (ib. 
216); see also Chase Trial, 63. 

3 Testimony of James Triplett, Chase Trial, 44-45, and see Ar» 
naU, 8th Cong. 2d Sess. 217-19. 



38 JOHN MARSHALL 

But the people of Virginia, because of their hatred 
of the Sedition Law, were ardent champions of Cal- 
lender. Richmond lawyers were hostile to Chase 
and were the bitter enemies of the statute which 
they knew he would enforce. Jefferson was anxious 
that Callender "should be substantially defended, 
whether in the first stages by public interference or 
private contributors." 1 

One ambitious young attorney, George Hay, who 
seven years later was to act as prosecutor in the 
greatest trial at which John Marshall ever presided, 2 
volunteered to defend Callender, animated to this 
course by devotion to "the cause of the Constitu- 
tion," in spite of the fact that he "despised" his 
adopted client. 3 William Wirt was also inspired to 
offer his services in the interest of free speech. These 
Virginia attorneys would show this tyrant of the 
National Judiciary that the Virginia bar could not 
be borne down. 4 Of all this the hot-spirited Chase 

1 Jefferson to Monroe, May 26, 1800, Works: Ford, ix, 136. By 
"public interference" Jefferson meant an appropriation by the Vir- 
ginia Legislature. (lb. 137.) 

2 The trial of Aaron Burr, see infra, chaps, vi, vri, vin, and ix. 

3 See testimony of George Hay, Annals, 8th Cong. 2d Sess. 203; 
and see especially Luther Martin's comments thereon, infra, chap. rv. 

4 The public mind was well prepared for just such appeals as those 
that Hay and Wirt planned to make. For instance, the citizens of 
Caroline County subscribed more than one hundred dollars for Cal- 
ender's use. 

The subscription paper, probably drawn by Colonel John Taylor, 
in whose hands the money was placed, declared that Callender "has 
a cause closely allied to the preservation of the Constitution, and to 
the freedom of public opinion; and that he ought to be comforted 
in his bonds." 

Callender was "a sufferer for those principles." Therefore, and 
"because also he is poor and has three infant children who live by his 
daily labor" the contributors freely gave the money "to be applied 



DEMOCRACY: JUDICIARY 39 

was advised; and he resolved to forestall the pas- 
sionate young defenders of liberty. He was as witty 
as he was fearless, and throughout the trial brought 
down on Hay and Wirt the laughter of the specta- 
tors. 

But in the court-room there was one spectator 
who did not laugh. John Marshall, then Secretary 
of State, witnessed the proceedings J with grave 
misgivings. 

Chase frequently interrupted the defendant's 
counsel. "What," said he, "must there be a depar- 
ture from common sense to find out a construction 
favorable " to Callender? The Justice declared that 
a legal point which Hay attempted to make was "a 
wild notion." 2 When a juror said that he had never 
seen the indictment or heard it read, Chase declared 
that of course he could not have formed or delivered 
an opinion on the charges; and then denied the 
request that the indictment be read for the infor- 
mation of the juror. Chase would not permit that 
eminent patriot and publicist, Colonel John Taylor 
of Caroline, to testify that part of Callender's state- 
ment was true; "No evidence is admissible," said 
the Justice, "that does not . . justify the whole 
charge." 3 

William Wirt, in addressing the jury, was arguing 
that if the jury believed the Sedition Act to be un- 
constitutional, and yet found Callender guilty, they 

to the use of James T. Callender, and if he should die in prison, to the 
use of his children." (Independent Chronicle, Boston, July 10, 1800.) 

1 See infra, chap. iv. 

8 Wharton: State Trials, 692. 

• lb. 696-98; and see testimony of Taylor, Chase Trial, 38-39. 



40 JOHN MARSHALL 

"would violate their oath." Chase ordered him to 
sit down. The jury had no right to pass upon the 
constitutionality of the law — "such a power would 
be extremely dangerous. Hear my words, I wish the 
world to know them." The Justice then read a long 
and very able opinion which he had carefully pre- 
pared in anticipation that this point would be raised 
by the defense. 1 After another interruption, in which 
Chase referred to Wirt as " the young gentleman " 
in a manner that vastly amused the audience, the 
discomfited lawyer, covered with confusion, aban- 
doned the case. 

When Hay, in his turn, was addressing the jury, 
Chase twice interrupted him, asserting that the 
beardless attorney was not stating the law correctly. 
The reporter notes that thereupon "Mr. Hay folded 
up and put away his papers . . and refused to pro- 
ceed." The Justice begged him to go on, but Haj 
indignantly stalked from the room. 

Acting under the instructions of Chase, Callender 
was convicted. The court sentenced him to impris- 
onment for nine months, and to pay a fine of two 
hundred dollars. 2 

The proceedings at this trial were widely pub- 
lished. The growing indignation of the people at the 
courts rose to a dangerous point. The force of popu- 

1 Wharton : St ate Trials, 717-18. Chase's charge to the jury was 
an argument that the constitutionality of a law could not be deter- 
mined by a jury, but belonged exclusively to the Judicial Department. 
For a brief prScis of this opinion see chap, in of this volume. Chase 
advanced most of the arguments used by Marshall in Marbury vs, 
Madison. 

2 lb. 718. When Jefferson became President he immediately par« 
doned Callender. (See next chapter.) 



DEMOCRACY: JUDICIARY 41 

lar wrath was increased by the alarm of the bar, 
which generally had been the stanch supporter of 
the bench. 1 

Hastening from Richmond to New Castle, Dela- 
ware, Justice Chase emphasized the opinion now 
current that he was an American Jeffreys and typical 
of the spirit of the whole National Judiciary. Upon 
opening court, he said that he had heard that there 
was a seditious newspaper in the State. He directed 
the United States Attorney to search the files of all 
the papers that could be found, and to report any 
abusive language discovered. It was the haying sea- 
son, and the grand jury, most of whom were farmers, 
asked to be discharged, since there was no business 
for them to transact. Chase refused and held them 
until the next day, in order to have them return 
indictments against any printer that might have 
criticized the Administration. 2 But the prosecutor's 
investigation discovered nothing "treasonable" ex- 
cept a brief and unpleasant reference to Chase him- 
self. So ended the Delaware visit of the ferret of the 
National Judiciary. 

Thus a popular conviction grew up that no man 
was safe who assumed to criticize National officials. 
The persecution of Matthew Lyon was recalled, and 
the punishment of other citizens in cases less widely 
known 3 became the subject of common talk, — all 

1 Wharton: State Triah, footnote to 718. 

2 See testimonies of Gunning Bedford, Nicholas Vandyke, Archi- 
bald Hamilton, John Hall, and Samuel P. Moore, Chase Trial, 98- 
101. 

3 For example, one Charles Holt, publisher of a newspaper, The 
Bee, of New London, Connecticut, had commented on the uselessness 
of enlisting in the army, and reflected upon the wisdom of the Admin- 



42 JOHN MARSHALL 

adding to the growing popular wrath against the 
whole National Judiciary. The people regarded 
those brought under the lash of justice as martyrs 
to the cause of free speech; and so, indeed, they 
were. 

The method of securing indictments and convic- 
tions also met with public condemnation. In many 
States the United States Marshals selected what 
persons they pleased as members of the grand juries 
and trial juries. These officers of the National courts 
were, without exception, Federalists; in many cases 
Federalist politicians. When making up juries they 
selected only persons of the same manner of thinking 
as that of the marshals and judges themselves. 1 So 
it was that the juries were nothing more than 
machines that registered the will, opinion, or even 
inclination of the National judges and the United 
States District Attorneys. In short, in these prose- 

istration's policy; for this he was indicted, convicted, and sentenced 
to three months' imprisonment, and the payment of a fine of two 
hundred dollars. (Randall: Life of Tlwmas Jefferson, n, 418.) 

When President Adams passed through Newark, New Jersey, the 
local artillery company fired a salute. One of the observers, a man 
named Baldwin, idly remarked that "he wished the wadding from 
the cannon had been lodged in the President's backside." For this 
seditious remark Baldwin was fined one hundred dollars. (Hammond;. 
History of Political Parties in the State of New York, i, 130-31.) 

One Jedediah Peck, Assemblyman from Otsego County, N.Y., cir- 
culated among his neighbors a petition to Congress to repeal the Alien 
and Sedition Laws. This shocking act of sedition was taken up by the 
United States District Attorney for New York, who procured the in- 
dictment of Peck; and upon bench warrant, the offender was arrested 
and taken to New York for trial. It seems that such were the demon- 
strations of the people, wherever Peck appeared in custody of the 
officer, that the case was dropped. (Randall, n, 420.) 

1 They were supposed to select juries according to the laws of the 
States where the courts were held. As a matter of fact they called 
the men they wished to serve. 



DEMOCRACY: JUDICIARY 43 

cutions, trial by jury in any real sense was not to be 
had. 1 

Certain State judges of the rabid Federalist type, 
apostles of "the wise, the rich, and the good " political 
religion, were as insulting in their bearing, as immod- 
erate in their speech, and as intolerant in their con- 
duct as some of the National judges; and prosecu- 
tions in some State courts were as bad as the worst 
of those in the National tribunals. 

In Boston, when the Legislature of Massachusetts 
was considering the Kentucky and Virginia Resolu- 
tions, John Bacon of Berkshire, a Republican State 
Senator, and Dr. Aaron Hill of Cambridge, the 
leader of the Republicans in the House, resisted the 
proposed answer of the Federalist majority. Both 
maintained the ground upon which Republicans 
everywhere now stood — that any State might dis- 
regard an act of Congress which it deemed unconsti- 
tutional. 2 Bacon and Hill were supported by the 
solid Republican membership of the Massachusetts 
Legislature, which the Columbian Centinel of Boston, 
a Federalist organ, called a "contemptible minority," 
every member of which was " worse than an infidel." 3 

The Independent Chronicle, the Republican news- 
paper of Boston, observed that "It is difficult for the 

1 McMaster: History of the People of the United States, n, 473; 
and see speech of Charles Pinckney in the Senate, March 5, 1800, 
Annals, 6th Cong. 1st and 2d Sess. 97. 

2 See speech of Bacon in the Independent Chronicle, Feb. 11-14, 
1799; and of Hill, ib. Feb. 25, 1799. 

3 Columbian Centinel, Feb. 16, 1799; also see issue of Jan. 23, 1799. 
For condensed account of this incident see Anderson in Am. Hist. 
Rev. v, 60-62, quoting the Centinel as cited. A Federalist mob stoned 
the house of Dr. Hill the night after he made this speech. (76.) See 
also infra, chap. in. 



44 JOHN MARSHALL 

common capacities to conceive of a sovereignty so 
situated that the Sovereign shall have no right to de- 
cide on any invasion of his constitutional powers." 
Bacon's speech, said the Chronicle, "has been read 
with delight by all true Republicans, and will always 
stand as a monument of his firmness, patriotism, 
and integrity. . . The name of an American Bacon 
will be handed down to the latest generations of 
freemen with high respect and gratitude, while the 
names of such as have aimed a death wound to the 
Constitution of the United States will rot above 
ground and be unsavoury to the nostrils of every 
lover of Republican freedom." l 

The Massachusetts Mercury of February 22, 1799, 
reports that "On Tuesday last . . Chief Justice 
Dana . . commented on the contents of the Inde- 
pendent Chronicle of the preceding day. He properly 
stated to the Jury that though he was not a sub- 
scriber to the paper, he obtained that one by accident, 
that if he was, his conscience would charge him with 
assisting to support a traitorous enmity to the 
Government of his Country." 

Thereupon Thomas Adams, the publisher, and 
Abijah Adams, a younger brother employed in the 
office, were indicted under the common law for at- 
tempting "to bring the government into disrespect, 
hatred, and contempt," and for encouraging sedi- 
tion. Thomas Adams was fatally ill and Abijah only 
was brought to trial. Under the instructions of the 
court he was convicted. In pronouncing sentence 
Chief Justice Dana delivered a political lecture. 

1 Independent Chronicle, Feb. 18, 1799. 



DEMOCRACY: JUDICIARY 45 

The Virginia and Kentucky Resolutions, he said, 
had attempted "to establish the monstrous posi- 
tion" that the individual States had the right to pass 
upon the constitutionality of acts of Congress. He 
then gave a resume of the reply of the majority of 
the Massachusetts Legislature to the Virginia Reso- 
lutions. This reply asserted that the decisions of all 
questions arising under the Constitution and laws 
of the United States "are exclusively vested in the 
Judicial Courts of the United States," and that the 
Sedition Act was "wise and necessary, as an auda- 
cious and unprincipled spirit of falsehood and abuse 
had been too long unremittingly exerted for the pur- 
pose of "perverting public opinion, and threatened to 
undermine the whole fabric of government." The 
irate judge declared that the Chronicle's criticism of 
this action of the majority of the Legislature and its 
praise of the Republican minority of that body was 
an "indecent and outrageous calumny." 

"Censurable as the libel may be in itself," Dana 
continued, the principles stated by Adams's counsel 
in conducting his defense were equally "dangerous 
to public tranquility." These daring lawyers had 
actually maintained the principle of the liberty of 
the press. They had denied that an American citi- 
zen could be punished under the common law of 
England. "Novel and disorganizing doctrines," ex- 
claimed Dana in the midst of a long argument to 
prove that the common law was operative in the 
United States. 1 

1 Columbian Centinel, March 30, 1799. The attorneys for Adams 
also advanced the doctrines of the Kentucky and Virginia Resolutions, 



m JOHN MARSHALL 

In view of the fact that Abijah Adams was not the 
author of the libel, nor even the publisher or editor 
of the Chronicle, but was "the only person to whom 
the public can look for retribution," the court gra- 
ciously sentenced him to only one month's imprison- 
ment, but required him to find sureties for his good 
behavior for a year, and to pay the costs of the 
trial. 1 

Alexander Addison, the presiding judge of one of 
the Pennsylvania State courts, was another Feder- 
alist State judge whose judicial conduct and assaults 
from the bench upon democracy had helped to bring 
courts into disrepute. Some of his charges to grand 
juries were nothing but denunciations of Republican 
principles. 2 

His manner on the bench was imperious; he bul- 

so far, at least, as to assert that any State ought to protest against 
and resist any act of Congress that the Commonwealth believed to 
be in violation of the National Constitution. (Anderson, in Am. Hist. 
Rev. v, 226-27.) 

1 Columbian Centinel, March 27, 1799. 

Another instance of intolerant and partisan prosecutions in State 
courts was the case of Duane and others, indicted and tried for getting 
signatures to a petition in Congress against the Alien and Sedition 
Laws. They were acquitted, however. (Wharton: State Trials, 
345-89.) 

2 These charges of Judge Addison were, in reality, political pam- 
phlets. They had not the least reference to any business before the 
court, and were no more appropriate than sermons. They were, how- 
ever, written with uncommon ability. It is doubtful whether any 
arguments more weighty have since been produced against what 
George Cabot called "excessive democracy." These grand jury 
charges of Addison were entitled: "Causes and Error of Complaints 
and Jealousy of the Administration of the Government"; "Charges 
to the Grand Juries of the County Court of the Fifth Circuit of the 
State of Pennsylvania, at December Session, 1798"; "The Liberty of 
Speech and of the Press"; "Charge to Grand Juries, 1798"; "Rise 
and Progress of Revolution," and "A Charge to the Grand Juries of 
the State of Pennsylvania, at December Session, 1800." 



DEMOCRACY: JUDICIARY 47 

lied counsel, browbeat witnesses, governed his as- 
sociate judges, ruled juries. In one case, 1 Addison 
forbade the Associate Judge to address the jury, and 
prevented him from doing so. 2 

Nor did the judges stop with lecturing everybody 
from the bench. Carrying with them the authority 
of their exalted positions, more than one of them, 
notably Justice Chase and Judge Addison, took the 
stump in political campaigns and made partisan 
speeches. 3 

So it fell out that the manners, language, and con- 
duct of the judges themselves, together with their 
use of the bench as a political rostrum, their parti- 
sanship as to the European belligerents, their mer- 
ciless enforcement of the common law — aroused 
that public fear and hatred of the courts which 
gave Jefferson and the Republicans their opportu- 
nity. The questions which lay at the root of the 
Republican assault upon the Judiciary would not of 
themselves, and without the human and dramatic 
incidents of which the cases mentioned are exam- 
ples, have wrought up among citizens that fighting 
spirit essential to a successful onslaught upon the 

1 Coulter vs. Moore, for defamation. Coulter, a justice of the peace, 
sued Moore for having declared, in effect, that Coulter "kept a house 
of ill fame." (Trial of Alexander Addison, Esq.: Lloyd, stenographer, 
38; also Wharton: State Trials, 32 et seq.) 

2 This judge was John C. B. Lucas. He was a Frenchman speaking 
broken English, and, judging from the record, was a person of very 
inferior ability. There seems to be no doubt that he was the mere 
tool of another judge, Hugh H. Brackenridge, who hated Addison viru- 
lently. From a study of the case, one cannot be surprised that the 
able and erudite Addison held in greatest contempt the fussy and 
ignorant Lucas. 

3 Wharton: State Trials, 45; Carson: Supreme Court of the United 
States, Its History, i, 193. 



48 JOHN MARSHALL 

National system of justice, which the Federalists 
had made so completely their own. 1 

Those basic questions thus brought theatrically 
before the people's eyes, had been created by the 
Alien and Sedition Laws, and by the Virginia and 
Kentucky Resolutions which those undemocratic 
statutes called forth. Freedom of speech on the one 
hand and Nationalism on the other hand, the crush- 
ing of "sedition" as against that license which Lo- 
calism permitted — such were the issues which the 
imprudence and hot-headedness of the Federalist 
judges had brought up for settlement. Thus, un- 
happily, democracy marched arm in arm with State 
Rights, while Nationalism found itself the intimate 
companion of a narrow, bigoted, and retrograde 
conservatism. 

Had not the Federalists, arrogant with power and 
frantic with hatred of France and fast becoming 
zealots in their championship of Great Britain, 
passed the drastic laws against liberty of the press 
and freedom of speech; had not the Republican 
protest against these statutes taken the form of the 
assertion that individual States might declare uncon- 

1 The uprising against the Judiciary naturally began in Pennsyl 
vania where the extravagance of the judges had been carried to the 
most picturesque as well as obnoxious extremes. For a faithful narra- 
tive of these see McMaster: U.S. in, 153-55. 

On the other hand, wherever Republicans occupied judicial posi- 
tions, the voice from the bench, while contrary to that of the Federal- 
ist judges, was no less harsh and absolute. 

For instance, the judges of the Supreme Court of New Hampshire 
refused to listen to the reading of British law reports, because they 
were from "musty, old, worm-eaten books." One of the judges de- 
clared that "not Common Law — not the quirks of Coke and Black- 
stone — but common sense" controlled American judges. (Warren, 
227.) 



DEMOCRACY: JUDICIARY 49 

stitutional and disregard the acts of the National 
Legislature; and finally, had not National tribunals 
and some judges of State courts been so harsh and 
insolent, the Republican assault upon the National 
Judiciary, 1 the echoes of which loudly sound in our 
ears even to the present day, probably never would 
have been made. 

But for these things, Marbury vs. Madison 2 might 
never have been written; the Supreme Court might 
have remained nothing more than the comparatively 
powerless institution that ultimate appellate judicial 
establishments are in other countries ; and the career 
of John Marshall might have been no more notable 
and distinguished than that of the many ghostly 
figures in the shadowy procession of our judicial his- 
tory. But the Republican condemnations of the se- 
vere punishment that the Federalists inflicted upon 
anybody who criticized the Government, raised fun- 
damental issues and created conditions that forced 
action on those issues. 

1 See next chapter. 

2 See infra, chap, in, for a resume of the conditions that forced 
Marshall to pronounce his famous opinion in the case of Marbury vs. 
Madison, as well as for a full discussion of that controversy 



CHAPTER n 

THE ASSAULT ON THE JUDICIARY 

The angels of destruction are making haste. Our judges are to be as inde- 
pendent as spaniels. (Fisher Ames.) 

The power which has the right of passing, without appeal, on the validity of 
your laws, is your sovereign. (John Randolph.) 

On January 6, 1802, an atmosphere of intense but 
suppressed excitement pervaded the little semi- 
circular room where the Senate of the United States 
was in session. 1 The Republican assault upon the 
Judiciary was about to begin and the Federalists 
in Congress had nerved themselves for their last 
great fight. The impending debate was to prove one 
of the permanently notable engagements in Ameri- 
can legislative history and was to create a situation 
which, in a few months, forced John Marshall to 
pronounce the first of those fundamental opinions 
which have helped to shape and which still influence 
the destiny of the American Nation. 

The decision of Marbury vs. Madison was to be 
made inevitable by the great controversy to which 
we are now to listen. Marshall's course, and, in- 
deed, his opinion in this famous case, cannot be 
understood without a thorough knowledge of the 
notable debate in Congress which immediately 
preceded it. 2 

Never was the effect of the long years of party 

1 The Senate then met in the chamber now occupied by the Su- 
preme Court. 

2 See infra, chap. Hi. 



THE ASSAULT ON THE JUDICIARY 51 

training which Jefferson had given the Republicans 
better manifested than now. There was unsparing 
party discipline, perfect harmony of party plan. 
The President himself gave the signal for attack, but 
with such skill that while his lieutenants in House 
and Senate understood their orders and were eager 
to execute them, the rank and file of the Federalist 
voters, whom Jefferson hoped to win to the Repub- 
lican cause in the years to come, were soothed rather 
than irritated by the seeming moderation and rea- 
sonableness of the President's words. 

"The Judiciary system . . and especially that por- 
tion of it recently enacted, will, of course, present 
itself to the contemplation of Congress," was the 
almost casual reference in the President's first Mes- 
sage to the Republican purpose to subjugate the 
National Judiciary. To assist Senators and Repre- 
sentatives in determining "the proportion which the 
institution bears to the business it has to perform" 
Jefferson had "procured from the several states . . 
an exact statement of all the causes decided since 
the first establishment of the courts and of the causes 
which were pending when additional courts and 
judges were brought to their aid." This summary 
he transmitted to the law-making body. 

In a seeming spirit of impartiality, almost of in- 
difference, the President suggested Congressional 
inquiry as to whether jury trials had not been with- 
held in many cases, and advised the investigation 
of the manner of impaneling juries. 1 

1 Jefferson to Congress, Dec. 8, 1801, Works: Ford, rx, 321 et seq.; 
also Messages and Papers of the Presidents: Richardson, i, 331. 



52 JOHN MARSHALL 

Thus far and no farther went the comments on the 
National Judiciary which the President laid before 
Congress. The status of the courts — a question 
that filled the minds of all, both Federalists and 
Republicans — was not referred to. But the thought 
of it thrilled Jefferson, and only his caution re- 
strained him from avowing it. Indeed, he had actu- 
ally written into the message words as daring as 
those of his cherished Kentucky Resolutions; had 
boldly declared that the right existed in each de- 
partment "to decide on the validity of an act ac- 
cording to its own judgment and uncontrolled by 
the opinions of any other department"; had asserted 
that he himself, as President, had the authority and 
power to decide the constitutionality of National 
laws; and had, as President, actually pronounced, in 
official form, the Sedition Act to be 'in palpable and 
unqualified contradiction to the Constitution." * 

This was not merely a part of a first rough draft of 
this Presidential document, nor was it lightly cast 
aside. It was the most important paragraph of the 
completed Message. Jefferson had signed it on De- 
cember 8, 1801, and it was ready for transmission 
to the National Legislature. But just before sending 
the Message to the Capitol, he struck out this pas- 
sage, 2 and thus notes on the margin of the draft his 
reason for doing so: "This whole paragraph was 
omitted as capable of being chicaned, and furnishing 
something to the opposition to make a handle of. 

1 Jefferson, Jefferson MSS. Lib. Cong., partly quoted in Beard: 
Economic Origins of Jeffersonian Democracy, 454-55. 

2 For full text of this exposition of Constitutional law by Jefferson 
see Appendix A. 



THE ASSAULT ON THE JUDICIARY 53 

It was thought better that the message should be 
clear of everything which the public might be made 
to misunderstand." 

Although Jefferson's programme, as stated in the 
altered message which he finally sent to Congress, 
did not arouse the rank and file of Federalist voters, 
it did alarm and anger the Federalist chieftains, who 
saw the real purpose back of the President's colorless 
words. Fisher Ames, that delightful reactionary, 
thus interpreted it: "The message announces the 
downfall of the late revision of the Judiciary; econ- 
omy, the patriotism of the shallow and the trick of 
the ambitious. . . The U. S. Gov't . . is to be dis- 
mantled like an old ship. . . The state gov'ts are to 
be exhibited as alone safe and salutary." 1 

The Judiciary Law of 1801, which the Federalist 
majority enacted before their power over legislation 
passed forever from their hands, was one of the best 
considered and ablest measures ever devised by that 
constructive party. 2 Almost from the time of the 
organization of the National Judiciary the National 
judges had complained of the inadequacy and posi- 
tive evils of the law under which they performed 
their duties. The famous Judiciary Act of 1789, 
which has received so much undeserved praise, did 
not entirely satisfy anybody except its author, 
Oliver Ellsworth. "It is a child of his and he defends 

1 Ames to King, Dec. 20, 1801, King, iv, 40. 

Like most eminent Federalists, except Marshall, Hamilton, and 
Cabot, Fisher Ames was soon to abandon his Nationalism and become 
one of the leaders of the secession movement in New England. (See 
vol. iv, chap, i, of this work.) 

2 See vol. ii, 531, 547-48, 550-52, of this work. 



54 JOHN MARSHALL 

it . . with wrath and anger," wrote Maclay in his 
diary. 1 

In the first Congress opposition to the Ellsworth 
Act had been sharp and determined. Elbridge Gerry 
denounced the proposed National Judiciary as "a 
tyranny." 2 Samuel Livermore of New Hampshire 
called it "this new f angled system" which "would . . 
swallow up the State Courts." 3 James Jackson of 
Georgia declared that National courts would cruelly 
harass "the poor man." 4 Thomas Sumter of South 
Carolina saw in the Judiciary Bill "the iron hand of 
power." 6 Maclay feared that it would be "the gun- 
powder plot of the Constitution." 6 

When the Ellsworth Bill had become a law, Sena- 
tor William Grayson of Virginia advised Patrick 
Henry that it "wears so monstrous an appearance 
that I think it will be felo-de-se in the execution. . . 
Whenever the Federal Judiciary comes into opera- 
tion, . . the pride of the states . . will in the end 
procure its destruction " 7 — a prediction that came 
near fulfillment and probably would have been real- 
ized but for the courage of John Marshall. 

While Grayson's eager prophecy did not come to 
pass, the Judiciary Act of 1789 worked so badly 
that it was a source of discontent to bench, bar, 
and people. William R. Davie of North Carolina, a 
member of the Convention that framed the Consti- 
tution and one of the most eminent lawyers of his 
time, condemned the Ellsworth Act as "so defective 

1 Journal of Samuel Maclay: Meginness, 90. 

2 Annals, 1st Cong. 1st Sess. 862. 3 lb. 852. 

4 lb. 833-34. 5 lb. 864-65. 6 Maclay's Journal, 98. 
7 Grayson to Henry, Sept. 29, 1789, Tyler, I, 170-71. 



THE ASSAULT ON THE JUDICIARY 55 

. . that . . it would disgrace the composition of the 
meanest legislature of the States." 1 

It was, as we have seen, 2 because of the deficien- 
cies of the original Judiciary Law that Jay refused 
reappointment as Chief Justice. "I left the bench," 
he wrote Adams, "perfectly convinced that under a 
system so defective it would not obtain the energy, 
weight, and dignity which are essential to its affording 
due support to the national government, nor acquire 
the public confidence and respect which, as the last 
resort of the justice of the nation, it should possess." 3 

The six Justices of the Supreme Court were re- 
quired to hold circuit courts in pairs, together with 
the judge of the district in which the court was held, 
Each circuit was to be thus served twice every year, 
and the Supreme Court was to hold two sessions 
annually in Washington. 4 So great were the dis- 
tances between places where courts were held, so 
laborious, slow, and dangerous was all travel, 5 that 

1 Davie to Iredell, Aug. 2, 1791, Life and Correspondence of James 
Iredell: McRee, n, 335. 

2 Vol. ii, 552-53, of this work. 

3 Jay to Adams, Jan. 2, 1801, Jay: Johnston, iv, 285. 

4 Annals, 1st Cong. 2d and 3d Sess. 2239. 

6 See vol. I, chap, vi, of this work. The conditions of travel are 
well illustrated by the experiences of six members of Congress, when 
journeying to Philadelphia in 1790. "Burke was shipwrecked off the 
Capes; Jackson and Mathews with great difficulty landed at Cape 
May and traveled one hundred and sixty miles in a wagon to the city; 
Burke got here in the same way. Gerry and Partridge were overset in 
the stage; the first had his head broke, . . the other had his ribs sadly 
bruised. . . Tucker had a dreadful passage of sixteen days with per- 
petual storms." (Letter of William Smith, as quoted by Johnson: 
Union and Democracy, 105-06.) 

On his way to Washington from Amelia County in 1805, Senator 
Giles was thrown from a carriage, his leg fractured and bis knee badly 
injured. (Anderson, 101.) 



56 JOHN MARSHALL 

the Justices — men of ripe age and studious habits 
— spent a large part of each year upon the road. 1 
Sometimes a storm would delay them, and litigants 
with their assembled lawyers and witnesses would 
have to postpone the trial for another year or await, 
at the expense of time and money, the arrival of the 
belated Justices. 2 

A graver defect of the act was that the Justices, 
sitting together as the Supreme Court, heard on ap- 
peal the same causes which they had decided on the 
Circuit Bench. Thus, in effect, they were trial and 
appellate judges in identical controversies. More- 
over, by the rotation in riding circuits different 
judges frequently heard the same causes in their 
various stages, so that uniformity of practice, and 
even of decisions, was made impossible. 

The admirable Judiciary Act, passed by the Feder- 
alists in 1801, corrected these defects. The member- 
ship of the Supreme Court was reduced to five after 
the next vacancy, the Justices were relieved of the 
heavy burden of holding circuit courts, and their 
duties were confined exclusively to the Supreme 
Bench. The country was divided into sixteen cir- 
cuits, and the office of circuit judge was created for 

1 This arrangement proved to be so difficult and vexatious that in 
1792 Congress corrected it to the extent of requiring only one Justice 
of the Supreme Court to hold circuit court with the District Judge; but 
this slight relief did not reach the serious shortcomings of the law. 
(Annals, 2d Cong. 1st and 2d Sess. 1447.) 

See Adams: U.S. I, 274 et seq., for good summary of the defects of 
the original Judiciary Act, and of the improvements made by the 
Federalist Law of 1801. 

2 See statement of Ogden, Annals, 7th Cong. 1st Sess. 172; of 
Chipman, ib. 123; of Tracy, ib. 52; of Griswold, ib. 768; of Huger. 
ib. 672, 



THE ASSAULT ON THE JUDICIARY 57 

each of these. The Circuit Judge, sitting with the 
District Judge, was to hold circuit court, as the Jus- 
tices of the Supreme Court had formerly done. Thus 
the prompt and regular sessions of the circuit courts 
were assured. The appeal from decisions rendered 
by the Supreme Court Justices, sitting as circuit 
judges, to the same men sitting as appellate judges, 
was done away with. 1 

In establishing these new circuits and creating 
these circuit judges, this excellent Federalist law 
gave Adams the opportunity to fill the offices thus 
created with stanch Federalist partisans. Indeed, 
this was one motive for the enactment of the law. 
The salaries of the new circuit judges, together with 
other necessary expenses of the remodeled system, 
amounted to more than fifty thousand dollars every 
year — a sum which the Republicans exaggerated in 
their appeals to the people and even in their argu- 
ments in Congress. 2 

Chiefly on the pretext of this alleged extravagance, 
but in reality to oust the newly appointed Federalist 
judges and intimidate the entire National Judiciary, 
the Republicans, led by Jefferson, determined to re- 

1 Of course, to some extent this evil still continued in the appeals 
to the Circuit Bench; but the ultimate appeal was before judges who 
had taken no part in the cause. 

The soundness of the Federalist Judiciary Act of 1801 was demon- 
strated almost a century later, in 1891-95, when Congress reenacted 
every essential feature of it. (See "Act to establish circuit courts 
of appeals and to define and regulate in certain cases the jurisdiction 
of the courts of the United States, and for other purposes," March 
3, 1891, chap. 517, amended Feb. 18, 1895, chap. 96.) 

2 For example, Senator Cocke of Tennessee asserted the expense to 
be $137,000. (Annals, 7th Cong. 1st. Sess. 30.) See especially Prof. 
Farrand's conclusive article in Am. Hist. Rev. v, 682-86. 



58 JOHN MARSHALL 

peal the Federalist Judiciary Act of 1801, upon the 
faith in the passage of which John Marshall, with 
misgiving, had accepted the office of Chief Justice. 

On January 6, 1802, Senator John Breckenridge 
of Kentucky pulled the lanyard that fired the open- 
ing gun. 1 He was the personification of anti-Nation- 
alism and aggressive democracy. He moved the 
repeal of the Federalist National Judiciary Act of 
1801. 2 Every member of Senate and House — Re- 
publican and Federalist — was uplifted or depressed 
by the vital importance of the issue thus brought to 
a head; and in the debate which followed no words 
were too extreme to express their consciousness of 
the gravity of the occasion. 3 

In opening the debate, Senator Breckenridge con- 
fined himself closely to the point that the new Feder- 
alist judges were superfluous. "Could it be neces- 
sary," he challenged the Federalists, "to increase 
courts when suits were decreasing ? . . to multiply 

1 It was to Breckenridge that Jefferson had entrusted the intro- 
duction of the Kentucky Resolutions of 1798 into the Legislature of 
that State. It was Breckenridge who had led the fight for them. At 
the time of the judiciary debate he was Jefferson's spokesman in the 
Senate; and later, at the President's earnest request, resigned as 
Senator to become Attorney-General. 

2 Breckenridge's constituents insisted that the law be repealed, be- 
cause they feared that the newly established National courts would 
conflict with the system of State courts which the Legislature of Ken- 
tucky had just established. (See Carpenter, Am. Pol. Sci. Rev. ix, 523.) 

Although the repeal had been determined upon by Jefferson almost 
immediately after his inauguration (see Jefferson to Stuart, April 8, 
1801; Works: Ford, ix, 247), Breckenridge relied upon that most 
fruitful of Republican intellects, John Taylor "of Caroline," the origi- 
nator of the Kentucky Resolutions (see vol. n, 397, of this work) for 
his arguments. See Taylor to Breckenridge, Dec. 22, 1801, infra. 
Appendix B. 

3 Annals, 7th Cong. 1st Sess. 31-46, 51-52, 58, 513, 530. 



THE ASSAULT ON THE JUDICIARY 59 

judges, when their duties were diminishing?" No! 
"The time never will arrive when America will stand 
in need of thirty-eight Federal Judges." * The Fed- 
eralist Judiciary Law was "a wanton waste of the 
public treasure." 2 Moreover, the fathers never in- 
tended to commit to National judges "subjects of 
litigation which . . could be left to State Courts." 
Answering the Federalist contention that the Con- 
stitution guaranteed to National judges tenure of 
office during "good behavior" and that, therefore, 
the offices once established could not be destroyed 
by Congress, the Kentucky Senator observed that 
"sinecure offices, . . are not permitted by our laws 
or Constitution." 3 

James Monroe, then in Richmond, hastened to in- 
form Breckenridge that "your argument . . is highly 
approved here." But, anxiously inquired that foggy 
Republican, "Do you mean to admit that the legis- 
lature [Congress] has not a right to repeal the law 
organizing the supreme court for the express pur- 
pose of dismissing the judges when they cease to pos- 
sess the public confidence? " If so, "the people have 
no check whatever on them . . but impeachment." 
Monroe hoped that "the period is not distant" when 
any opposition to "the sovereignty of the people" 
by the courts, such as " the application of the prin- 
ciples of the English common law to our constitu- 
tion," would be considered "good cause for impeach- 
ment." 4 Thus early was expressed the Republican 
plan to impeach and remove Marshall and the entire 

1 Annals, 7 th Cong. 1st Sess. 26. - lb. 25. 3 lb. 28. 

4 Monroe to Breckenridge, Jan. 15, 1802, Breckenridge MSS. Lib. 
Cong. 



60 JOHN MARSHALL 

Federal membership of the Supreme Court so soon 
to be attempted. 1 

In reply to Breckenridge, Senator Jonathan 
Mason of Massachusetts, an accomplished Boston 
lawyer, promptly brought forward the question in 
the minds of Congress and the country. "This," 
said he, "was one of the most important questions 
that ever came before a Legislature." Why had the 
Judiciary been made "as independent of the Legis- 
lature as of the Executive?" Because it was their 
duty "to expound not only the laws, but the Con- 
stitution also; in which is involved the power of 
checking the Legislature in case it should pass any 
laws in violation of the Constitution." 2 

The old system which the Republicans would now 
revive was intolerable, declared Senator Gouverneur 
Morris of New York. "Cast an eye over the extent 
of our country" and reflect that the President, "in 
selecting a character for the bench, must seek less 
the learning of a judge than the agility of a post 
boy." Moreover, to repeal the Federal Judiciary 
Law would be "a declaration to the remaining 
judges that they hold their offices subject to your 
[Congress's] will and pleasure." Thus "the check 
established by the Constitution is destroyed." 

Morris expounded the conservative Federalist 
philosophy thus: "Governments are made to pro- 
vide against the follies and vices of men. . . Hence, 
checks are required in the distribution of power 
among those who are to exercise it for the benefit of 

1 See infra, chaps, in and iv. 

a Annals, 7th Cong. 1st Sess. 31-32. 



THE ASSAULT ON THE JUDICIARY 61 

the people." The most efficient of these checks was 
the power given the National Judiciary — "a check 
of the first necessity, to prevent an invasion of the 
Constitution by unconstitutional laws — a check 
which might prevent any faction from intimidating 
or annihilating the tribunals themselves." 1 

Let the Republican Senators consider where their 
course would end, he warned. "What has been the 
ruin of every Republic? The vile love of popularity. 
Why are we here? To save the people from their most 
dangerous enemy; to save them from themselves." 2 Do 
not, he besought, "commit the fate of America to 
the mercy of time and chance." 3 

"Good God!" exclaimed Senator James Jackson 
of Georgia, "is it possible that I have heard such a 
sentiment in this body? Rather should I have ex- 
pected to have heard it sounded from the despots of 
Turkey, or the deserts of Siberia. 4 . . I am more 
afraid of an army of judges, . . than of an army of 
soldiers. . . Have we not seen sedition laws?" The 
Georgia Senator "thanked God" that the terrorism 
of the National Judiciary was, at last, overthrown, 
"That we are not under dread of the patronage of 
judges, is manifest, from their attack on the Secre- 
tary of State." 5 

1 Annals, 7th Cong. 1st Sess. 88. 

2 This unfortunate declaration of Morris gave the Republicans an 
opportunity of unlimited demagogic appeal. See infra. (Italics the 
author's.) 

3 Annals, 7th Cong. 1st Sess. 40-41. 

Morris spoke for an hour. There was a " large audience, which is 
not common for that House." He prepared his speech for the press. 
{Diary and Letters of Gouverneur Morris: Morris, n, 417.) 

4 Annals, 7th Cong. 1st Sess. 49. 

6 76. 47-48. Senator Jackson here refers to the case of Marbury vs. 



62 JOHN MARSHALL 

Senator Uriah Tracy of Connecticut was so con- 
.•erned that he spoke in spite of serious illness. 
''What security is there to an individual," he asked, 
if the Legislature of the Union or any particular 
State, should pass an ex post facto law? "None in 
the world" but revolution or "an appeal to the Ju- 
diciary of the United States, where he will obtain a 
decision that the law itself is unconstitutional and 
void." * 

That typical Virginian, Senator Stevens Thomp- 
son Mason, able, bold, and impetuous, now took up 
Gouverneur Morris's gage of battle. He was one of 
the most fearless and capable men in the Republi- 
can Party, and was as impressive in physical ap- 
pearance as he was dominant in character. He was 

Madison, then pending before the Supreme Court. (See infra, chap, 
in.) This case was mentioned several times during the debate. It is 
plain that the Republicans expected Marshall to award the mandamus, 
and if he did, to charge this as another act of judicial aggression for 
which, if the plans already decided upon did not miscarry, they 
would make the new Chief Justice suffer removal from his office by 
impeachment. (See infra, chap, iv.) 

1 Annals, 7th Cong. 1st Sess. 58. Tracy's speech performed the 
miracle of making one convert. After he closed he was standing before 
the glowing fireplace, "half dead with his exertions." Senator Colhoun 
of South Carolina came to Tracy, and giving him his hand, said: "You 

are a stranger to me, sir, but by you have made me your friend." 

Colhoun said that he " had been told a thousand lies " about the Feder- 
alist Judiciary Act, particularly the manner of passing it, and he had, 
therefore, been in favor of repealing it. But Tracy had convinced 
him, and Colhoun declared: "I shall be with you on the question." 
"May we depend upon you?" asked Tracy, wringing the South Car- 
olina Senator's hand. "By you may," was the response. (Mor- 

ison: Life of the Hon. Jeremiah Smith, footnote to 147.) Colhoun 
kept his word and voted with the Federalists against his party's pet 
measure. (Annals, 7th Cong. 1st Sess. 185.) 

The correct spelling of this South Carolina Senator's name is Col- 
houn, and not Calhoun, as given in so many biographical sketches 
of him. (See South Carolina Magazine for July, 1906.) 



THE ASSAULT ON THE JUDICIARY 63 

just under six feet in height, yet heavy with fat; he 
had extraordinarily large eyes, gray in color, a wide 
mouth with lips sternly compressed, high, broad 
forehead, and dark hair, thrown back from his 
brow. Mason had "wonderful powers of sarcasm" 
which he employed to the utmost in this debate. 1 

It was true, he said, in beginning his address, that 
the Judiciary should be independent, but not "in- 
dependent of the nation itself." Certainly the Judi- 
ciary had not Constitutional authority "to control 
the other departments of the Government." 2 Ma- 
son hotly attacked the Federalist position that a 
National judge, once appointed, was in office per- 
manently; and thus, for the second time, Marbury 
vs. Madison was brought into the debate. "Have 
we not heard this doctrine supported in the mem- 
orable case of the mandamus, lately 3 before the 
Supreme Court? Was it not there said [in argu- 
ment of counsel] that, though the law had a right 
to establish the office of a justice of the peace, yet 
it had not a right to abridge its duration to five 
years?" 4 

i See Grigsby: Virginia Convention of 1788, n, 260-262. 
This was the same Senator who, in violation of the rules of the 
Senate, gave to the press a copy of the Jay Treaty which the Sen- 
ate was then considering. The publication of the treaty raised a 
storm of public wrath against that compact. (See vol. II, 115, of 
this work.) Senator Mason's action was the first occurrence in our 
history of a treaty thus divulged. 
* 2 Annals, 7th Cong. 1st Sess. 59. 

3 In that case Marshall had issued a rule to the Secretary of State 
to show cause why a writ of mandamus should not be issued by the 
court ordering him to deliver to Marbury and his associates commis- 
sions as justices of the peace, to which offices President Adams had 
appointed them. (See infra, chap, in.) 

4 Annals, 7th Cong. 1st Sess. 61. 



64 JOHN MARSHALL 

The true principle, Mason declared, was that 
judicial offices like all others "are made for the good 
of the people and not for that of the individual who 
administers them." Even Judges of the Supreme 
Court should do something to earn their salaries; but 
under the Federalist Judiciary Act of 1801 "what 
have they got to do? To try ten suits, [annually] for 
such is the number now on their docket." 

Mason now departed slightly from the Republican 
programme of ignoring the favorite Federalist theory 
that the Judiciary has the power to decide the con- 
stitutionality of statutes. He fears that the Justices 
of the Supreme Court "will be induced, from want 
of employment, to do that which they ought not to 
do. . . They may . . hold the Constitution in one 
hand, and the law in the other, and say to the de- 
partments of Government, so far shall you go and no 
farther." He is alarmed lest "this independence 
of the Judiciary" shall become "something like su- 
premacy." 1 

Seldom in parliamentary contests has sarcasm, al- 
ways a doubtful weapon, been employed with finer 
art than it was by Mason against Morris at this 
time. The Federalists, in the enactment of the Judi- 
ciary Act of 1801, had abolished two district courts 
— the very thing for which the Republicans were 
now assailed by the Federalists as destroyers of the 
Constitution. Where was Morris, asked Mason, 
when his friends had committed that sacrilege? 
"Where was the Ajax Telamon of his party" at that 
hour of fate? "Where was the hero with his seven- 

1 Annals, 7th Cong. 1st Sess. 63. 



THE ASSAULT ON THE JUDICIARY 65 

fold shield — not of bull's hide, but of brass — pre- 
pared to prevent or to punish this Trojan rape?" * 

Morris replied lamely. He had been criticized, he 
complained, for pointing out "the dangers to which 
popular governments are exposed, from the influence 
of designing demagogues upon popular passion." 
Yet "'t is for these purposes that all our Constitu- 
tional checks are devised." Otherwise "the Consti- 
tution is all nonsense." He enumerated the Constitu- 
tional limitations and exclaimed, "Why all these 
multiplied precautions, unless to check and control 
that impetuous spirit . . which has swept away 
every popular Government that ever existed?" 2 

Should all else fail, "the Constitution has given us 
. . an independent judiciary" which, if "you trench 
upon the rights of your fellow citizens, by passing an 
unconstitutional law . . will stop you short." Pre- 
serve the Judiciary in its vigor, and in great contro- 
versies where the passions of the multitude are 
aroused, "instead of a resort to arms, there will be a 
happier appeal to argument." 3 

Answering Mason's fears that the Supreme Court, 
"having little else to do, would do mischief," Morris 
avowed that he should "rejoice in that mischief," 
if it checked "the Legislative or Executive depart- 
ments in any wanton invasion of our rights. . . I 
know this doctrine is unpleasant; I know it is more 
popular to appeal to public opinion — that equivo- 
cal, transient being, which exists nowhere and every- 

1 Annals, 7th Cong. 1st Sess. 66. The eloquence of the Virginia 
Senator elicited the admiration of even the rabidly Federalist Colum- 
bian Centinel of Boston. See issue of February 6, 1802. 

2 lb. 77. 3 76. 83. 



66 JOHN MARSHALL 

where. But if ever the occasion calls for it, I trust 
the Supreme Court will not neglect doing the great 
mischief of saving this Constitution." x 

His emotions wrought to the point of oratorical 
ecstasy, Morris now made an appeal to "the good 
sense, patriotism, and . . virtue" of the Republic, in 
the course of which he became badly entangled in 
his metaphors. "Do not," he pleaded, "rely on that 
popular will, which has brought us frail beings into 
political existence. That opinion is but a changeable 
thing. It will soon change. This very measure will 
change it. You will be deceived. Do not . . commit 
the dignity, the harmony, the existence of our nation 
to the wild wind. Trust not your treasure to the 
waves. Throw not your compass and your charts 
into the ocean. Do not believe that its billows will 
waft you into port. Indeed, indeed, you will be de- 
ceived. 

"Cast not away this only anchor of our safety. 
I have seen its progress. I know the difficulties 
through which it was obtained. I stand in the pres- 
ence of Almighty God, and of the world; and I de- 
clare to you, that if you lose this charter, never, no, 
never will you get another! We are now, perhaps, 
arrived at the parting point. Here, even here, we 
stand on the brink of fate. Pause — Pause ! For 
Heaven's sake, pause!" 2 

Senator Breckenridge would not "pause." The 
"progress" of Senator Morris's "anchor," indeed, 
dragged him again to "the brink of fate." The Sen- 
ate had "wandered long enough" with the Federal- 
1 Annals, 7th Cong. 1st Sess. 89. 2 lb. 91-92. 



THE ASSAULT ON THE JUDICIARY 67 

ist Senators "in those regions of fancy and of terror, 
to which they [have] led us." He now insisted that 
the Senate return to the real subject, and in a speech 
which is a model of compact reasoning, sharpened 
by sarcasm, discussed all the points raised by the 
Federalist Senators except their favorite one of the 
power of the National Judiciary to declare acts 
of Congress unconstitutional. This he carefully 
avoided. 1 

On January 15, 1802, the new Vice-President of 
the United States, Aaron Burr, first took the chair 
as presiding officer of the Senate. 2 Within two 
weeks 3 an incident happened which, though seem- 
ingly trivial, was powerfully and dramatically to 
affect the course of political events that finally en- 
compassed the ruin of the reputation, career, and 
fortune of many men. 

Senator Jonathan Dayton of New Jersey, in order, 
as he claimed, to make the measure less objection- 
able, moved that "the bill be referred to a select 
committee, with instructions to consider and report 
the alterations which may be proper in the judiciary 
system of the United States." 4 On this motion the 
Senate tied; and Vice-President Burr, by his decid- 
ing vote, referred the bill to the select committee. 
In doing this he explained that he believed the 
Federalists sincere in their wish "to ameliorate the 
provisions of the bill, that it might be rendered more 

1 Annals, 7th Cong. 1st Sess. 99. 

2 Morris notes in his diary that, on the same day, the Senate 
resolved " to admit a short-hand writer to their floor. This is the 
beginning of mischief." (Morris, n, 416-17.) 

3 January 27, 1802. 4 Annals, 7th Cong. 1st Sess. 149. 



68 JOHN MARSHALL 

acceptable to the Senate." But he was careful to 
warn them that he would "discountenance, by his 
vote, any attempt, if any such should be made, that 
might, in an indirect way, go to defeat the bill." * 

Five days later, one more Republican Senator, 
being present, and one Federalist Senator, being 
absent, the committee was discharged on motion 
of Senator Breckenridge; and the debate continued, 
the Federalists constantly accusing the Republicans 
of a purpose to destroy the independence of the Na- 
tional Judiciary, and asserting that National judges 
must be kept beyond the reach of either Congress or 
President in order to decide fearlessly upon the 
constitutionality of laws. 

At last the steady but spirited Breckenridge was so 
irritated that he broke away from the Republican 
plan to ignore this principal article of Federalist 
faith. He did not intend to rise again, he said, but 
"an argument had been so much pressed" that he 
felt it must be answered. "I did not expect, sir, to 
find the doctrine of the power of the courts to annul 
the laws of Congress as unconstitutional, so seriously 
insisted on. . .1 would ask where they got that 

1 Annals, 7th Cong. 1st Sess. 150. 

Burr's action was perfectly correct. As an impartial presiding offi- 
cer, he could not well have done anything else. Alexander J. Dal- 
las, Republican Attorney-General of Pennsylvania, wrote the Vice- 
President a letter approving his action. (Dallas to Burr, Feb. 3, 
1802, Davis: Memoirs of Aaron Burr, n, 82.) Nathaniel Niles, a 
rampant Republican, sent Burr a letter thanking him for his vote. 
As a Republican, he wanted his party to be fair, he said. (Niles to 
Burr, Feb. 17, 1802, ib. 83-84.) Nevertheless, Burr's vote was seized 
upon by his enemies as the occasion for beginning those attacks upon 
him which led to his overthrow and disgrace. (See chaps. VI, VII, 
Vin, and ix of this volume.) 



THE ASSAULT ON THE JUDICIARY 69 

power, and who checks the courts when they violate 
the Constitution?" 

The theory that courts may annul legislation 
would give them "the absolute direction of the Gov- 
ernment." For, "to whom are they responsible?" 
He wished to have pointed out the clause which 
grants to the National Judiciary the power to over- 
throw legislation. "Is it not extraordinary," said 
he, "that if this high power was intended, it should 
nowhere appear? . . Never were such high and trans- 
cendant powers in any Government (much less in 
one like ours, composed of powers specially given 
and defined) claimed or exercised by construction 
only." * 

Breckenridge frankly stated the Republican phi- 
losophy, repeating sometimes word for word the pas- 
sage which Jefferson at the last moment had deleted 
from his Message to Congress. 2 "The Constitution," 
he declared, "intended a separation of the powers 
vested in the three great departments, giving to each 
exclusive authority on the subjects committed to it. 
. . Those who made the laws are presumed to have 
an equal attachment to, and interest in the Consti- 
tution ; are equally bound by oath to support it, and 
have an equal right to give a construction to it. . . 
The construction of one department of the powers 
vested in it, is of higher authority than the construc- 
tion of any other department. 

"The Legislature," he continued, "have the ex- 
clusive right to interpret the Constitution, in what 

1 Annals, 7th Cong. 1st Sess. 178-79. 

2 See Appendix A to this volume. 



70 JOHN MARSHALL 

regards the law-making power, and the judges are 
bound to execute the laws they make. For the Legis- 
lature would have at least an equal right to annul 
the decisions of the courts, founded on their con- 
struction of the Constitution, as the courts would 
have to annul the acts of the Legislature, founded on 
their construction. 1 . . In case the courts were to 
declare your revenue, impost and appropriation laws 
unconstitutional, would they thereby be blotted out 
of your statute book, and the operations of Govern- 
ment arrested? . . Let gentlemen consider well before 
they insist on a power in the Judiciary which places 
the Legislature at their feet." 2 

The candles 3 now dimly illuminating the little 
Senate Chamber shed scarcely more light than radi- 
ated from the broad, round, florid face of Gouver- 
neur Morris. Getting to his feet as quickly as his 
wooden leg would permit, his features beaming with 
triumph, the New York Senator congratulated "this 
House, and all America, that we have at length got 
our adversaries upon the ground where we can fairly 
meet." 4 

The power of courts to declare legislation invalid 
is derived from "authority higher than this Consti- 
tution . . from the constitution of man, from the 
nature of things, from the necessary progress of 
human affairs," 5 he asserted. In a cause on trial 
before them, it becomes necessary for the judges to 

1 Annals, 7th Cong. 1st Sess. 179. 2 76. 180. 

3 It was five o'clock (ib. 178) when Senator Breckenridge began to 
speak; it must have been well after six when Senator Morris rose 
to answer him. 

4 Ib. 180. 6 Ib. 180. 



THE ASSAULT ON THE JUDICIARY 71 

"declare what the law is. They must, of course, 
determine whether that which is produced and relied 
on, has indeed the binding force of law." 

Suppose, said Morris, that Congress should pass 
an act forbidden by the Constitution — for instance, 
one laying "a duty on exports," and "the citizen 
refuses to pay." If the Republicans were right, the 
courts would enforce a collection. In vain would 
the injured citizen appeal to the Supreme Court; for 
Congress would "defeat the appeal, and render final 
the judgment of inferior tribunals, subjected to their 
absolute control." According to the Republican 
doctrine, "the moment the Legislature . . declare 
themselves supreme, they become so . . and the 
Constitution is whatever they choose to make it." x 
This time Morris made a great impression. The Fed- 
eralists were in high feather; even the Republicans 
were moved to admiration. Troup reported to King 
that "the democratical paper at Washington pro- 
nounced his speech to be the greatest display of elo- 
quence ever exhibited in a deliberative assembly!" 2 

Nevertheless, the Federalist politicians were wor- 
ried by the apparent indifference of the rank and file 
of their party. "I am surprized," wrote Bayard, "at 
the public apathy upon the subject. Why do not 
those who are opposed to the project, express in the 
public papers or by petitions their disapprobation? 
. . It is likely that a public movement would have 
great effect." 3 But, thanks to the former conduct of 

1 Annals, 7th Cong. 1st Sess. 181. 

2 Troup to King, April 9, 1802, King, iv, 103. 

3 Bayard to Bassett, Jan. 25, 1802, Papers of James A. Bayard: 
Donnan, 146-47. 



72 JOHN MARSHALL 

the judges themselves, no "public movement" de- 
veloped. Conservative citizens were apprehensive; 
but, as usual, they were lethargic. 

On February 3, 1802, the Senate, by a strictly 
party vote x of 16 to 15, passed the bill to repeal the 
Federalist Judiciary Act of 1801. 2 

When the bill came up in the House, the Federalist 
leader in that body, James A. Bayard of Delaware, 
moved to postpone its consideration to the third 
Monday in March, in order, as he said, to test pub- 
lic opinion, because "few occasions have occurred so 
important as this." 3 But in vain did the Federalists 
plead and threaten. Postponement was refused by 
a vote of 61 to 35. 4 Another plea for delay was de- 
nied by a vote of 58 to 34. 6 Thus the solid Repub- 
lican majority, in rigid pursuance of the party plan, 
forced the consideration of the bill. 

The Federalist organ in Washington, which Mar- 
shall two years earlier was supposed to influence and 
to which he probably contributed, 6 saw little hope of 
successful resistance. "What will eventually be the 
issue of the present high-handed, overbearing pro- 
ceedings of Congress it is impossible to determine, 51 
but fear was expressed by this paper that condition,' 

1 Except Colhoun of South Carolina, converted by Tracy. See 
supra, 62. 

2 Annals, 7th Cong. 1st Sess. 183. 

3 lb. 510.. A correspondent of the Columbian Centinel, reporting 
the event, declared that " the stand which the Federal Senators have 
made to preserve the Constitution, has been manly and glorious. 
They have immortalized their names, while those of their opposers 
will be execrated as the assassins of the Constitution." (Columbian 
Centinel, Feb. 17, 1802.) 

* Annals, 7th Cong. 1st Sess. 518-19. 6 lb. 521-22. 

8 See vol. II, 532, 541. 



THE ASSAULT ON THE JUDICIARY 73 

would be created "which impartial, unbiased and 
reflecting men consider as immediately preceding the 
total destruction of our government and the intro- 
duction of disunion, anarchy and civil war." x 

This threat of secession and armed resistance, al- 
ready made in the Senate, was to be repeated three 
times in the debate in the House which was opened 
:or the Federalists by Archibald Henderson of North 
Carolina, whom Marshall pronounced to be "un- 
questionably among the ablest lawyers of his day" 
and "one of the great lawyers of the Nation." 2 
"The monstrous and unheard of doctrine . . lately 
advanced, that the judges have not the right of de- 
claring unconstitutional laws void," was, declared 
Henderson, "the very definition of tyranny, and 
wherever you find it, the people are slaves, whether 
they call their Government a Monarchy, Republic, 
or Democracy." If the Republican theory of the 
Constitution should prevail, "better at once to bury 
it with all our hopes." 3 

Robert Williams of the same State, an extreme 
but unskillful Republican, now uncovered his party's 
scheme to oust Federalist judges, which thus far had 
carefully been concealed: 4 "Agreeably to our Con- 
stitution a judge may be impeached," said he, but 
this punishment would be minimized if judges 
could declare an act of Congress unconstitutional. 
"However he may err, he commits no crime; how, 
then, can he be impeached?" 6 

1 Washington Federalist, Feb. 13, 1802. 

1 Henderson in North Carolina Booklet, xvn, 66. 

1 Annals, 7th Cong. 1st Sess. 529-30. 

* See infra, chap. iv. 6 Annals, 7th Cong. 1st Sess. 531. 



74 JOHN MARSHALL 

Philip R. Thompson of Virginia, a Republican, 
was moved to the depths of his being: "Give the 
Judiciary this check upon the Legislature, allow 
them the power to declare your laws null and void, 
. . and in vain have the people placed you upon this 
floor to legislate. 1 . . This is the tree where despotism 
lies concealed. . . Nurture it with your treasure, stop 
not its ramifications, and . . your atmosphere will be 
contaminated with its poisonous effluvia, and your 
soaring eagle will fall dead at its root." 2 

Thomas T. Davis of Kentucky, deeply stirred by 
this picture, declared that the Federalists said to the 
people, you are " incapable" of protecting yourselves; 
"in the Judiciary alone you find a safe deposit 
for your liberties." The Kentucky Representative 
"trembled" at such ideas. "The sooner we put men 
out of power, who [sic] we find determined to act in 
this manner, the better; by doing so we preserve 
the power of the Legislature, and save our nation 
from the ravages of an uncontrolled Judiciary." 3 
Thus again was revealed the Republican purpose of 
dragging from the National Bench all judges who 
dared assert the right, and to exercise the power to 
declare an act of Congress unconstitutional. 4 

The contending forces became ever more earnest 
as the struggle continued. All the cases then known 
in which courts directly or by inference had held 
legislative acts invalid were cited; 5 and all the argu- 

1 Annals, 7th Cong. 1st Sess. 552-53. 2 Ib. 554. 

3 Ib. 558. 4 See infra, chap. iv. 

6 See, for example, the speeches of Thomas Morris of New York 
(Annals, 7th Cong. 1st Sess. 565-68) ; Calvin Goddard of Connecticut 
(ib. 727-34); John Stanley of North Carolina (ib. 569-78); Roger 
Griswold of Connecticut (ib. 768-69). 



THE ASSAULT ON THE JUDICIARY 75 

ments that ever had been advanced in favor of the 
principle of the judicial power to annul legislation 
were made over and over again. 

All the reasons for the opinion which John Mar- 
shall, exactly one year later, pronounced in Marbury 
vs. Madison were given during this debate. Indeed, 
the legislative struggle now in progress and the re- 
sult of it, created conditions which forced Marshall 
to execute that judicial coup d'etat. It should be re- 
peated that an understanding of Marbury vs. Madi- 
son is impossible without a thorough knowledge of 
the debate in Congress which preceded and largely 
caused that epochal decision. 

The alarm that the repeal was but the begin- 
ning of Republican havoc was sounded by every 
Federalist member. "This measure," said John 
Stanley of North Carolina, "will be the first link 
in that chain of measures which will add the name 
of America to the melancholy catalogue of fallen 
Republics." 1 

William Branch Giles, who for the next five years 
bore so vital a part in the stirring events of Mar- 
shall's life, now took the floor and made one of the 
ablest addresses of his tempestuous career. 2 He was 
Jefferson's lieutenant in the House. 3 When the Fed- 
eralists tried to postpone the consideration of the 
bill, 4 Giles admitted that it presented a question 
"more important than any that ever came before 

1 Annals, 7th Cong. 1st Sess. 579. 

2 Anderson, 83. Grigsby says that "Mr. Jefferson pronounced 
him (Giles) the ablest debater of the age." His speech on the Re- 
peal Act, Grigsby declares to have been "by far his most brilliant 
display." (Grigsby: Virginia Convention of 1829-30, 23, 29.) 

3 Anderson, 76-82. 4 See supra, 72. 



76 JOHN MARSHALL 

this house." 1 But there was no excuse for delay, 
because the press had been full of it for more than 
a year and the public was thoroughly informed 
upon it. 2 

Giles was a large, robust, "handsome" Virginian, 
whose lightest word always compelled the attention 
of the House. He had a very dark complexion, black 
hair worn long, and intense, "retreating" brown 
eyes. His dress was "remarkably plain, and in the 
style of Virginia carelessness." His voice was "clear 
and nervous," his language "powerfully condensed." 3 

This Republican gladiator came boldly to combat. 
How had the Federalists contrived to gain their 
ends? Chiefly by " the breaking out of a tremendous 
and unprecedented war in Europe," which had 
worked upon "the feelings and sympathies of the 
people of the United States" till they had neg- 
lected their own affairs. So it was, he said, that the 
Federalists had been able to load upon the people an 
expensive army, a powerful navy, intolerable taxes, 

1 This statement, coming from the Virginia radical, reveals the 
profound concern of the Republicans, for Giles thus declared that the 
Judiciary debate was of greater consequence than those historic con- 
troversies over Assumption, the Whiskey Rebellion, the Bank, Neu- 
trality, the Jay Treaty, the French complication, the army, and other 
vital subjects. In most of those encounters Giles had taken a leading 
and sometimes violent part. 

2 Annals, 7th Cong. 1st Sess. 512. 

3 Story's description of Giles six years later: Story to Fay, Feb. 13, 
1808, Story, I, 158-59. Also see Anderson, frontispiece and 238. 

Giles was thirty-nine years of age. He had been elected to the House 
in 1790, and from the day he entered Congress had exasperated the 
Federalists. It is an interesting though trivial incident that Giles bore 
to Madison a letter of introduction from Marshall. Evidently the 
circumspect Richmond attorney was not well impressed with Giles, 
for the letter is cautious in the extreme. (See Anderson, 10; also 
Annals, 7th Cong. 1st Sess. 581.) 



THE ASSAULT ON THE JUDICIARY 77 

and the despotic Alien and Sedition Laws. But at 
last, when, as the result of their maladministration, 
the Federalists saw their doom approaching, they 
began to "look out for some department of the gov- 
ernment in which they could entrench themselves . . 
and continue to support those favorite principles of 
irresponsibility which they could never consent to 
abandon." 

For this purpose they had selected the Judiciary 
Department: "Not only because it was already 
filled" with rabid Federalists, "but because they 
held their offices by indefinite tenures, and of course 
were further removed from any responsibility to the 
people than either of the other departments." Thus 
came the Federalist Judiciary Act of 1801 which the 
Republicans were about to repeal. 

Giles could not resist a sneer at Marshall. Refer- 
ring to the European war, to which "the feelings and 
sympathies of the people of the United States were 
so strongly attracted . . that they considered their 
own internal concerns in a secondary point of view," 
Giles swiftly portrayed those measures used by the 
Federalists as a pretext. They had, jeered the sharp- 
tongued Virginia Republican, "pushed forward the 
people to the X, Y, Z, of their political alphabet, 
before they had well learned . . the A, B, C, of the 
principles of the [Federalist] Administration." x 

But now, when blood was no longer flowing on 

European battle-fields, the interests of the American 

people in that "tremendous and unprecedented" 

combat of nations "no longer turn their attention 

1 Annals, 7th Cong. 1st Sess. 580-81. 



78 JOHN MARSHALL 

from their internal concerns; arguments of the high- 
est consideration for the safety of the Constitution 
and the liberty of the citizens, no longer receive the 
short reply, French partisans ! Jacobins ! Disorgan- 
izes!" * So "the American people and their Con- 
gress, in their real persons, and original American 
characters" were at last "engaged in the transac- 
tion of American concerns." 2 

Federalist despotism lay prostrate, thank Heaven, 
beneath the conquering Republican heel. Should it 
rise again? Never! Giles taunted the Federalists 
with the conduct of Federalist judges in the sedition 
cases, 3 and denounced the attempt to fasten British 
law on the American Nation — a law "unlimited in 
its object, and indefinite in its character," covering 
"every object of legislation." 

Think, too, of what Marshall and the Supreme 
Court have done! "They have sent a . . process 
leading to a mandamus, into the Executive cabinet, 
to examine its concerns." 4 The real issue between 
Federalists and Republicans, declared Giles, was 
"the doctrine of irresponsibility against the doctrine 
of responsibility. . . The doctrine of despotism in 
opposition to the representative system." The Fed- 
eralist theory was "an express avowal that the peo- 
ple were incompetent to govern themselves." 

A handsome, florid, fashionably attired man of 
thirty-five now took the floor and began his reply to 
the powerful speech of the tempestuous Virginian. 

1 Annals, 7th Cong. 1st Sess. 582. 2 lb. 583. 

3 See supra, chap. i. 

4 Marbury vs. Madison (see infra, chap. in). For Giles's great 
speech see Annals, 7th Cong. 1st Sess. 579-602. 



THE ASSAULT ON THE JUDICIARY 79 

His complexion and stoutness indicated the generous 
manner in which all public men of the time lived, and 
his polished elocution and lofty scorn for all things 
Republican marked him as the equal of Gouverneur 
Morris in oratorical finish and Federalist distrust of 
the people. 1 It was James A. Bayard, the Federalist 
leader of the House. 

He asserted that the Republican "designs [were] 
hostile to the powers of this government"; that they 
flowed from "state pride [which] extinguishes a na- 
tional sentiment"; that while the Federalists were 
in charge of the National Administration they strug- 
gled "to maintain the Constitutional powers of the 
Executive" because "the wild principles of French 
liberty were scattered through the country. We had 
our Jacobins and disorganizers, who saw no difference 
between a King and a President; and, as the people 
of France had put down their King, they thought 
the people of America ought to put down their 
President. 

"They [Federalists] who considered the Constitu- 
tion as securing all the principles of rational and 
practicable liberty, who were unwilling to embark 
upon the tempestuous sea of revolution, in pursuit 
of visionary schemes, were denounced as monarch- 
ists. A line was drawn between the Government 

1 Bayard is "a fine, personable man . . of strong mental powers. . . 
Nature has been liberal to him. . . He has, in himself, vast resources 
. . a lawyer of high repute . . and a man of integrity and honor. . . He 
is very fond of pleasure . . a married man but fond of wine, women and 
cards. He drinks more than a bottle of wine each day. . . He lives too 
fast to live long. . . He is very attentive to dress and person." (Sena- 
tor William Plumer's description of James A. Bayard, March 10, 
1803, "Repository," Plumer MSS. Lib. Cong.) 



80 JOHN MARSHALL 

and the people, and the friends of the Govern » 
ment [Federalists] were marked as the enemies of 
the people." 1 This was the spirit that was now 
triumphant; to what lengths was it to carry the 
Republicans? Did they include the downfall of the 
Judiciary in their plans of general destruction? Did 
they propose to make judges the mere creatures of 
Congress? 2 

Bayard skillfully turned the gibe at Marshall into 
a tribute to the Chief Justice. What did Giles mean 
by his cryptic X. Y. Z. reference? "Did he mean 
that the dispatches . . were impostures?" Though 
Giles "felt no respect" for Marshall or Pinckney — 
"two characters as pure, as honorable, and exalted, 
as any the country can boast of" — yet, exclaimed 
Bayard, " I should have expected that he would have 
felt some tenderness for Mr. Gerry." 3 

The Republicans had contaminated the country 
with falsehoods against the Federalist Administra- 
tions; and now the target of their "poisoned ar- 
rows" was the National Judiciary. " If . . they 
[the judges] have offended against the Constitution 
or laws of the country, why are they not impeached? 
The gentleman now holds the sword of justice. The 
judges are not a privileged order; they have no 
shelter but their innocence." 4 

In detail Bayard explained the facts in the case 
of Marbury vs. Madison. That the Supreme Court 
had been "hardy enough to send their mandate into 
the Executive cabinet " 6 was, said he, " a strong proof 

1 Annals, 7th Cong. 1st Sess. 605. 2 lb. 606. 

8 lb. 609. « lb. 611. B lb. 614. 



THE ASSAULT ON THE JUDICIARY 81 

of the value of that Constitutional provision which 
makes them independent. They are not terrified by 
the frowns of Executive power, and dare to judge 
between the rights of a citizen and the pretensions 
of a President." * 

Contrast the defects of the Judiciary Act of 1789 
with the perfection of the Federalist law supplanting 
it. Could any man deny the superiority of the lat- 
ter? 2 The truth was that the Republicans were "to 
give notice to the judges of the Supreme Court of 
their fate, and to bid them to prepare for their end." 3 
In these words Bayard charged the Republicans 
with their settled but unavowed purpose to unseat 
Marshall and his Federalist associates. 4 

Bayard hotly denied the Republican accusation 
that President Adams had appointed to the bench 
Federalist members of Congress as a reward for their 
party services; but, retorted he, Jefferson had done 
that very thing. 5 He then spoke at great length on 

1 Annals, 7th Cong. 1st Sess. 615. 

2 Bayard's summary of the shortcomings of the Ellsworth Act of 
1789 and the excellence of the Judiciary Act of 1801 (Annals, 7th 
Cong. 1st Sess. 616-27) was the best made at that time or since. 

3 lb. 632. 4 See infra, chap. iv. 

6 Bayard pointed out that Charles Pinckney of South Carolina, 
whose "zeal and industry" decided the Presidential vote of his State, 
had been appointed Minister to Spain; that Claiborne of Tennessee 
held the vote of that State and cast it for Jefferson, and that Jeffer- 
son had conferred upon him "the high degree of Governor of the 
Mississippi Territory"; that Mr. Linn of New Jersey, upon whom 
both parties depended, finally cast his deciding vote in favor of Jeffer- 
son and "Mr. Linn has since had the profitable office of supervisor 
of his district conferred upon him"; and that Mr. Lyon of Vermont 
neutralized the vote of his State, but since " his character was low . . 
Mr. Lyon's son has been handsomely provided for in one of the 
Executive offices." (Annals, 7th Cong. 1st Sess. 640.) Bayard named 
other men who had influenced the vote in the House and who had 
thereafter been rewarded by Jefferson. 



82 JOHN MARSHALL 

the nature of the American Judiciary as distin- 
guished from that of British courts, gave a vivid 
account of the passage of the Federalist Judiciary 
Act under attack, and finally swung back to the sub- 
ject which more and more was coming to dominate 
the struggle — the power of the Supreme Court to 
annul acts of Congress. 

Again and again Bayard restated, and with power 
and eloquence, all the arguments to support the 
supervisory power of courts over legislation. 1 At last 
he threatened armed resistance if the Republicans 
dared to carry out their plans against the National 
Judiciary. "There are many now willing to spill 
their blood to defend that Constitution. Are gentle- 
men disposed to risk the consequences? . . Let them 
consider their wives and children, their neighbors 
and their friends." Destroy the independence of the 
National Judiciary and "the moment is not far when 
this fair country is to be desolated by civil war." 2 

Bayard's speech aroused great enthusiasm among 
the leaders of his party. John Adams wrote: "Yours 
is the most comprehensive masterly and compleat 
argument that has been published in either house 
and will have, indeed . . has already had more effect 
and influence on the public mind than all other pub- 
lications on the subject." 3 The Washington Federal- 
ist pronounced Bayard's performance to be "far 
superior, not only to . . the speeches of Mr. Morris 

1 Annals, 7th Cong. 1st Sess. 645-48. 

2 lb. 648-50. This was the second open expression in Congress of 
the spirit that led the New England Federalist leaders into their 
futile secession movement. (See infra, chaps, in and vi; also vol. iv, 
chap. I, of this work.) 

3 Adams to Bayard, April 10, 1802; Bayard Papers: Donnan, 152, 



THE ASSAULT ON THE JUDICIARY 83 

and Mr. Tracy in the Senate, but to any speech of a 
Demosthenes, a Cicero, or a Chatham." * 

Hardly was Bayard's last word spoken when the 
man who at that time was the Republican master of 
the House, and, indeed, of the Senate also, was upon 
his feet. Of medium stature, thin as a sword, his 
straight black hair, in which gray already was begin- 
ning to appear, suggesting the Indian blood in his 
veins, his intense black eyes flaming with the passion 
of combat, his high and shrilling voice suggesting 
the scream of an eagle, John Randolph of Roanoke — 
that haughty, passionate, eccentric genius — personi- 
fied the aggressive and ruthless Republicanism of 
the hour. He was clad in riding-coat and breeches, 
wore long riding-boots, and if the hat of the Virginia 
planter was not on his head, it was because in his 
nervousness he had removed it; 2 while, if his riding- 
whip was not in his hand, it was on his desk where 
he had cast it, the visible and fitting emblem of this 
strange man's mastery over his partisan followers. 3 

1 Washington Federalist, Feb. 20, 1802. 

2 Members of Congress wore their hats during the sessions of House 
and Senate until 1828. For a description of Randolph in the House, see 
Tyler, i, 291. Senator Plumer pictured him as "a pale, meagre, ghostly 
man," with "more popular and effective talents than any other mem- 
ber of his party." (Plumer to Emery, Plumer, 248.) See also Plum- 
er's letter to his son, Feb. 22, 1803, in which the New Hampshire 
Senator says that " Randolph goes to the House booted and spurred, 
with his whip in his hand, in imitation, it is said, of members of the 
British Parliament. He is a very slight man, but of the common 
stature." At a distance he looks young, but "upon a nearer approach 
you perceive his wrinkles and grey hairs. He is, I believe, about 
thirty." (lb. 256.) 

3 The personal domination which John Randolph of Roanoke 
wielded over his party in Congress, until he broke with Jefferson (see 
infra, chaps, iv and x), is difficult to realize at the present day. 
Nothing like it has since been experienced, excepting only the merci' 



84 JOHN MARSHALL 

"He did not rise," he said, his voice quivering and 
body trembling, 1 "for the^ purpose of assuming the 
gauntlet which had been so proudly thrown by the 
Goliah of the adverse party; not but that he be- 
lieved even his feeble powers, armed with the simple 
weapon of truth, a sling and a stone, capable of pros- 
trating on the floor that gigantic boaster, armed 
cap-a-pie as he was." Randolph sneered, as only he 
could sneer, at the unctuous claims of the Federal- 
ists, that they had "nobly sacrificed their political 
existence on the altar of the general welfare"; he 
refused "to revere in them the self -immolated vic- 
tims at the shrine of patriotism." 2 

As to the Federalist assertion that "the common 
law of England is the law of the United States in 
their confederate capacity," Randolph observed 
that the meaning of such terms as "court," "jury," 
and the like must, of course, be settled by reference 
to common-law definitions, but "does it follow that 
that indefinite and undefinable body of law is the 
irrepealable law of the land? The sense of a most 
important phrase, 'direct tax,' as used in the Con- 
stitution, has been . . settled by the acceptation of 
Adam Smith; an acceptation, too, peculiar to him- 
self. Does the Wealth of Nations, therefore, form a 
part of the Constitution of the United States?" 

And would the Federalists inform the House what 
phase of the common law they proposed to adopt for 
the United States? Was it that "of the reign of 

less rule of Thaddeus Stevens of Pennsylvania from 1862 until 1868r 
(See Woodburn : Life of Thaddeus Stevens, 247 et seq.) 

1 Washington Federalist, Feb. 22, 1802. 

3 Annals, 7th Cong. 1st Sess, 650-51. 



THE ASSAULT ON THE JUDICIARY 85 

Elizabeth and James the first; or . . that of the time 
of George the Second?" Was it that "of Sir Walter 
Raleigh and Captain Smith, or that which was im- 
ported by Governor Oglethorpe?" Or was it that 
of some intermediate period? "I wish especially to 
know," asked Randolph, "whether the common law 
of libels which attaches to this Constitution, be the 
doctrine laid down by Lord Mansfield, or that which 
has immortalized Mr. Fox?" Let the Federalists 
reflect on the persecution for libel that had been 
made under the common law, as well as under the 
Sedition Act. 1 

Proper restraint upon Congress, said Randolph, 
was not found in a pretended power of the Judiciary 
to veto legislation, but in the people themselves, 
who at the ballot box could "apply the Constitu- 
tional corrective. That is the true check; every 
other is at variance with the principle that a free 
people are capable of self-government." Then the 
imperious Virginian boldly charged that the Feder- 
alists intended to have John Marshall and his asso- 
ciates on the Supreme Bench annul the Republican 
repeal of the Federalist Judiciary Act. 

"Sir," cried Randolph, "if you pass the law, the 
judges are to put their veto upon it by declaring it 
unconstitutional. Here is a new power of a danger- 
ous and uncontrollable nature. . . The decision of a 
Constitutional question must rest somewhere. Shall 
it be confided to men immediately responsible to the 
people, or to those who are irresponsible? . . From 
whom is a corrupt decision most to be feared? . . 

1 Annals, 7th Cong. 1st Sess. 652. 



86 JOHN MARSHALL 

The power which has the right of passing, without 
appeal, on the validity of your laws, is your sover- 
eign. . . Are we not as deeply interested in the true 
exposition of the Constitution as the judges can be? " 
inquired Randolph. "Is not Congress as capable of 
forming a correct opinion as they are? Are not its 
members acting under a responsibility to public 
opinion which can and will check their aberrations 
from duty?" 

Randolph referred to the case of Marbury vs. Mad- 
ison and then recalled the prosecution of Thomas 
Cooper in which the National court refused "to a 
man under criminal prosecution . . a subpoena to be 
served on the President, as a witness on the part of 
the prisoner. 1 . . This court, which it seems, has 
lately become the guardian of the feeble and op- 
pressed, against the strong arm of power, found it- 
self destitute of all power to issue the writ. . . 

"No, sir, you may invade the press; the courts 
will support you, will outstrip you in zeal to further 
this great object; your citizens may be imprisoned 
and amerced, the courts will take care to see it exe- 
cuted; the helpless foreigner may, contrary to the 
express letter of your Constitution, be deprived of 
compulsory process for obtaining witnesses in his 
defense; the courts in their extreme humility can- 
not find authority for granting it." 

Again Marbury vs. Madison came into the de- 

1 See supra, chap. I, 33; also infra, chap, rx, where Marshall, dur- 
ing the trial of Aaron Burr, actually issued such a subpoena. Randolph 
was now denouncing the National court before which Cooper was 
tried, because it refused to grant the very writ for the issuing of which 
Marshall in a few years was so rancorously assailed by Jefferson per* 
sonally, and by nearly all Republicans as a party. 



THE ASSAULT ON THE JUDICIARY 87 

bate: 1 "In their inquisitorial capacity," the Su- 
preme Court, according to Marshall's ruling in that 
case, could force the President himself to discharge 
his executive functions "in what mode" the omnipo- 
tent judges might choose to direct. And Congress! 
"For the amusement of the public, we shall retain 
the right of debating but not of voting." 2 The 
judges could forestall legislation by "inflammatory 
pamphlets," as they had done. 3 

As the debate wore on, little that was new was 
adduced. Calvin Goddard of Connecticut reviewed 
the cases in which judges of various courts had as- 
serted the Federalist doctrine of the judicial power 
to decide statutes unconstitutional, 4 and quoted from 
Marshall's speech on the Judiciary in the Virginia 
Convention of 1788. 5 

John Rutledge, Jr., of South Carolina, then de- 
livered one of the most distinguished addresses of this 
notable discussion. Suppose, he said, that Congress 
were to pass any of the laws which the Constitution 
forbids, "who are to decide between the Constitu- 
tion and the acts of Congress? . . If the people . . 
[are] not shielded by some Constitutional checks" 
their liberties will be "destroyed . . by demagogues, 
who filch the confidence of the people by pretending 

1 At the time Marshall issued the rule against Madison he appar- 
ently had no idea that Section 13 of the Ellsworth Judiciary Act was 
unconstitutional. (See next chapter.) 

2 Annals, 7th Cong. 1st Sess. 662-63. 

3 The Federalist organ tried, by ridicule, to minimize Randolph's 
really strong speech. "The speech of Mr. Randolph was a jumble of 
disconnected declamation. . . He was horribly tiresome to the ear 
and disgusting to the taste." (Washington Federalist, Feb. 22, 1802.) 

« Annals, 7th Cong. 1st Sess. 727. 

6 lb. 737. See also vol. I, 452, of this work. 



88 JOHN MARSHALL 

to be their friends; . . demagogues who carry dag- 
gers in their hearts, and seductive smiles in their 
hypocritical faces." * 

Rutledge was affected by the prevailing Federalist 
pessimism. "This bill," said he, "is an egg which 
will produce a brood of mortal consequences. . . It 
will soon prostrate public confidence; it will immedi- 
ately depreciate the value of public property. Who 
will buy your lands? Who will open your Western 
forests? Who will build upon the hills and cultivate 
the valleys which here surround us?" The financial 
adventurer who would take such risks "must be a 
speculator indeed, and his purse must overflow . . if 
there be no independent tribunals where the validity 
of your titles will be confirmed. 2 . . 

" Have we not seen a State [Georgia] sell its West- 
ern lands, and afterwards declare the law under 
which they were sold made null and void? Their 
nullifying law would have been declared void, had 
they had an independent Judiciary." 3 Here Rut- 
ledge anticipated by eight years the opinion de- 
livered by Marshall in Fletcher vs. Peck. 4 

"Whenever in any country judges are depend- 
ent, property is insecure." What had happened in 
France? "Frenchmen received their constitution as 
the followers of Mahomet did their Koran, as though 
it came to them from Heaven. They swore on their 
standards and their sabres never to abandon it. But, 
sir, this constitution has vanished; the swords which 
were to have formed a rampart around it, are now 

1 Annals, 7th Cong. 1st Sess. 747-55. 2 lb. 759. 

8 lb. 760. 4 See infra, chap. x. 



THE ASSAULT ON THE JUDICIARY 89 

worn by the Consular janissaries, and the Republi- 
can standards are among the trophies which decorate 
the vaulted roof of the Consul's palace. 1 Indeed . . 
[the] subject," avowed Rutledge with passionate 
earnestness, ''is perhaps as awful a one as any on 
this side of the grave. This attack upon our Consti- 
tution will form a great epoch in the history of our 
Government." 2 

Forcible resistance, if the Republican assault on 
the Judiciary succeeded, had twice been intimated 
during the debate. As yet, however, actual secession 
of the Northern and Eastern States had not been 
openly suggested, although it was common talk 
among the Federalists; 3 but now one of the boldest 
and frankest of their number broadly hinted it to be 
the Federalist purpose, should the Republicans per- 
sist in carrying out their purpose of demolishing the 
National courts. 4 In closing a long, intensely partisan 
and wearisome speech, Roger Griswold of Connecti- 
cut exclaimed: "There are states in this Union who 
will never consent and are not doomed to become 
the humble provinces of Virginia.'" 

Joseph H. Nicholson of Maryland, Republican, 
was hardly less prolix than Griswold. He asked 
whether the people had ever approved the adoption 
of the common law by the Judiciary. "Have they 
ever sanctioned the principle that the judges should 
make laws for them instead of their Representa- 
tives?" 6 Tiresome as he was, he made a conclusive 

1 Annals, 7th Cong. 1st Sess. 760. 2 lb. 760. 

3 See infra, chaps, in and vi. 

* Annals, 7th Cong. 1st Sess. 767-94. 

6 lb. 793. • lb. 805-06. 



90 JOHN MARSHALL 

argument against the Federalist position that the 
National Judiciary might apply the common law in 
cases not provided for by acts of Congress. 

The debate ran into the month of March. 1 Every 
possible phase of the subject was gone over time and 
again. All authorities which the ardent and tireless 
industry of the contending partisans could discover 
were brought to light. The pending case of Marbury 
vs. Madison was in the minds of all; and it was re- 
peatedly dragged into the discussion. Samuel W. 
Dana of Connecticut examined it minutely, citing 
the action of the Supreme Court in the case of the 
application for a mandamus to the Secretary of War 
upon which the court acted February 14, 1794: 
"There does not appear to have been any question 
respecting the general power of the Supreme Court, 
to issue a mandamus to the Secretary of War, or 
any other subordinate officer." That was "a regular 
mode for obtaining a decision of the Supreme Court. 
. . When such has been the unquestioned usage here- 
tofore, is it not extraordinary that there has not 
been prudence enough to say less about the case of 
Marbury against the Secretary of State?" 2 

1 In sour disgust Morris notes in his diary: "The House of Rep- 
resentatives have talked themselves out of self-respect, and at head- 
quarters [White House] there is such an abandonment of manner and 
such a pruriency of conversation as would reduce even greatness to 
the level of vulgarity." (March 10, 1802, Morris, II, 421.) 

2 A?i?ials, 7th Cong. 1st Sess. 904. 

Dana's statement is of first importance and should be carefully 
noted. It was at the time the universally accepted view of the power 
of the Supreme Court to issue writs of mandamus. Neither Federal- 
ists nor Republicans had ever questioned the Constitutional right of 
the Supreme Court to entertain original jurisdiction of mandamus 
proceedings in proper cases. Yet just this was what Marshall was so 
soon to deny in Marbury vs. Madison. (See infra, chap, in.) 



THE ASSAULT ON THE JUDICIARY 91 

Dana then touched upon the general expectation 
that Marshall would declare void the Repeal Act. 
Because of this very apprehension, the Republicans, 
a few days later, suspended for more than a year the 
sessions of the Supreme Court. So Dana threatened 
that if the Republicans should pass the bill, the Su- 
preme Court would annul it; for, said he, the Judi- 
ciary were sworn to support the Constitution, and 
when they find that instrument on one side and 
an act of Congress on the other, "what is their 
duty? Are they not to obey their oath, and judge 
accordingly? If so, they necessarily decide, that 
your act is of no force; for they are sworn to support 
the Constitution. This is a doctrine coeval with the 
existence of our Government, and has been the uni- 
form principle of all the constituted authorities." * 
And he cited the position taken by National judges 
in 1792 in the matter of the pension commission. 2 

John Bacon, that stanch Massachusetts Republi- 
can, 3 asserted that "the Judiciary have no more 
right to prescribe, direct or control the acts of the 
other departments of the Government, than the 
other departments of the Government have to pre- 
scribe or direct those of the Judiciary." 4 

The Republicans determined to permit no further 
delay; for the first time in its history the House was 
kept in session until midnight. 5 At twelve o'clock, 
March 3, 1802, the vote was taken on the final pas- 
sage of the bill, the thirty- two Federalists voting 
against and the fifty-nine Republicans for the meas- 

1 Annals, 7th Cong. 1st Sess. 920. 2 76. 923-26. 

3 See supra, chap. I, 43. 

* Annals, 7th Cong. 1st Sess. 983. 6 Hildreth, v, 441. 



92 JOHN MARSHALL 

ure. 1 "Thus ended this gigantic debate," chronicles 
the historian of that event. 2 No discussion in Con- 
gress had hitherto been so widely reported in the 
press or excited such general comment. By the great 
majority of the people the repeal was received with 
enthusiasm, although some Republicans believed 
that their party had gone too far. 3 Republican pa- 
pers, however, hailed the repeal as the breaking of 
one of those judicial fetters which shackled the peo- 
ple, while Federalist journals bemoaned it as the be- 
ginning of the annihilation of all that was sane and 
worthy in American institutions. 

"The fatal bill has passed; our Constitution is no 
more," exclaimed the Washington Federalist in an 
editorial entitled 

"Farewell, a long Farewell, to all our 
Greatness." 

The paper despaired of the Republic — nobody 
could tell "what other acts, urged by the intoxica- 
tion of power and the fury of party rage" would be 
put through. But it announced that the Federalist 
judges would disregard the infamous Republican 
law: "The judges will continue to hold their courts 
as if the bill had not passed. 'T is their solemn duty 
to do it; their country, all that is dear and valuable, 
call upon them to do it. By the judges this bill will 
be declared null and void. . . And we now ask the 

1 Bayard to Bassett, March 3, 1802, Bayard Papers : Donnan, 150; 
and see Annals, 7th Cong. 1st Sess. 982. One Republican, Dr. William 
Eustis of Boston, voted with the Federalists. 

2 Hist. Last Sess. Cong. Which Commenced 7th Dec. 1801 (taken 
from the National Intelligencer), 71. 

3 Tucker: Life of Thomas Jefferson, n, 114. 



THE ASSAULT ON THE JUDICIARY 93 

mighty victors, what is your triumph? . . What is 
the triumph of the President? He has gratified his 
malice towards the judges, but he has drawn a tear 
into the eye of every thoughtful patriot . . and laid 
the foundation of infinite mischief." The Federalist 
organ declared that the Republican purpose was to 
force a "dissolution of the Union," and that this 
was likely to happen. 

This significant editorial ended by a consideration 
of the Republican purpose to destroy the Supreme 
Court: "Should Mr. Breckenridge now bring for- 
ward a resolution to repeal the law establishing the 
Supreme Court of the United States, we should only 
consider it a part of the system to be pursued. . . We 
sincerely expect it will be done next session. . . Such 
is democracy." * 

Senator Plumer declared, before the final vote, 
that the passage of the Republican Repeal Bill and 
of other Republican measures meant "anarchy." 2 

The ultra-Federalist Palladium of Boston la- 
mented: "Our army is to be less and our navy 
nothing: Our Secretaries are to be aliens and our 
Judges as independent as spaniels. In this way we 
are to save everything, but our reputation and our 
rights. 3 . . Has Liberty any citadel or fortress, has 
mob despotism any impediments?" 4 

1 Washington Federalist, March 3, 1802. Too much importance 
cannot be attached to this editorial. It undoubtedly expressed accu- 
rately the views of Federalist public men in the Capital, including 
Marshall, whose partisan views and feelings were intense. It should 
not be forgotten that his relations with this newspaper were believed 
to be intimate. (See vol. II, 532, 541, of this work.) 

2 Plumer to Upham, March 1, 1802, Plumer MSS. Lib. Cong. 

3 March 12, 1802. * March 23, 1802. 



94 JOHN MARSHALL 

The Independent Chronicle, on the other hand, 
"congratulated the public on the final triumph of 
Republicanism, in the repeal of the late obnoxious 
judiciary law." x The Republicans of Boston and 
Cambridge celebrated the event with discharges of 
artillery. 

Vans Murray reported to King that "the princi- 
ple of . . disorganizing . . goes on with a destructive 
zeal. Internal Taxes — Judicial Sanctity — all are 
to be overset." 2 Sedgwick was sure that no defense 
was left against "legislative usurpation." 3 "The an- 
gels of destruction . . are making haste," moaned 
Fisher Ames. 4 

"The angels of destruction " lost no time in strik- 
ing their next blow. On March 18, two weeks after 
the threat of the Washington Federalist that the 
Supreme Court would declare unconstitutional the 
Republican Repeal Act, a Senate committee was 
appointed to examine further the National Judiciary 
establishment and report a bill for any improve- 
ments considered necessary. 5 Within a week the 
committee laid the measure before the Senate, 6 and 
on April 8 it was passed 7 without debate. 

When it reached the House, however, the Federal- 
ists had taken alarm. The Federalist Judiciary Act of 
1801 had fixed the terms of the Supreme Court in 
December and June instead of February and August. 
This new bill, plainly an afterthought, abolished the 

1 March 15, 1802. 

2 Vans Murray to King, April 5, 1802, King, iv, 95. 

3 Sedgwick to King, Feb. 20, 1802, ib. 73. 

4 Ames to Dwight, April 16, 1802, Ames, i, 297. 

5 Annals, 7th Cong. 1st Sess. 201. 6 Ib. 205. 7 lb. 257. 



THE ASSAULT ON THE JUDICIARY 95 

June session of the Supreme Court, directed that, 
thereafter, that tribunal should convene but once 
each year, and fixed the second Monday of February 
as the time of this annual session. 

Thus did the Republicans plan to take away from 
the Supreme Court the opportunity to pass upon the 
repeal of the Federalist Judiciary Act of 1801 until 
the old and defective system of 1789, which it re- 
stored, was again in full operation. Meanwhile, the 
wrath of the new National judges, whom the repeal 
left without offices, would wear itself down, and they 
would accept the situation as an accomplished fact. * 
John Marshall should have no early opportunity to 
overturn the Repeal Act, as the Republicans be- 
lieved he would do if given the chance. Neither 
should he proceed further with the case of Marbury 
vs. Madison for many months to come. 2 

Bayard moved that the bill should not go into 
effect until July 1 , thus permitting the Supreme Court 
to hold its June session; but, said Nicholson, that was 
just what the Republicans intended to prevent. Was 
a June session of the Supreme Court "a source of 
alarm?" asked Bayard. "The effect of the present 
bill will be, to have no court for fourteen months. . . 
Are gentlemen afraid of the judges? Are they afraid 
that they will pronounce the repealing law void?" 3 

Nicholson did not care whether the Supreme 

1 They never occupied the bench under the Federalist Act of 
1801. They were appointed, but the swift action of Jefferson and 
the Republicans prevented them from entering upon the discharge 
of their duties. 

2 This case was before the Supreme Court in December, 1801, 
and, ordinarily, would have been decided at the next term, June, 1802. 

3 Annals, 7th Cong. 1st Sess. 1228-29. 



96 JOim MARSHALL 

Court "pronounced the repealing law unconstitu- 
tional or not." The Republican postponement of the 
session for more than a year "does not arise from 
any design . . to prevent the exercise of power by the 
judges." But what of the Federalists' solicitude for 
an early sitting of the court? "We have as good a 
right to suppose gentlemen on the other side are as 
anxious for a session in June, that this power may 
be exercised, as they have to suppose we wish to 
avoid it, to prevent the exercise." 1 

Griswold could not credit the Republicans with 
so base a purpose: "I know that it has been said, 
out of doors, that this is the great object of the bill. 
I know there have been slanders of this kind; but 
they are too disgraceful to ascribe to this body. 
The slander cannot, ought not to be admitted." So 
Griswold hoped that Republicans would permit the 
Supreme Court to hold its summer session. He 
frankly avowed a wish for an early decision that 
the Repeal Act was void. "I think the speedier it 
[usurpation] is checked the better." 2 

Bayard at last flatly charged the Republicans 
with the purpose of preventing the Supreme Court 
from holding the Repeal Act unconstitutional. 
"This act is not designed to amend the Judicial sys- 
tem," he asserted; "that is but pretense. . . It is to 
prevent that court from expressing their opinion 
upon the validity of the act lately passed . . until 
the act has gone into full execution, and the ex- 
citement of the public mind is abated. . . Could a 
less motive induce gentlemen to agree to suspend 

1 Annals, 7th Cong. 1st Sess. 1229. 2 lb. 1229-30. 



THE ASSAULT ON THE JUDICIARY 97 

the sessions of the Supreme Court for fourteen 
months ?" * 

But neither the pleading nor the denunciation of 
the Federalists moved the Republicans. On Friday, 
April 23, 1802, the bill passed and the Supreme Court 
of the United States was practically abolished for 
fourteen months. 2 

At that moment began the movement that finally 
developed into the plan for the secession of the New 
England States from the Union. It is, perhaps, more 
accurate to say that the idea of secession had never 
been entirely out of the minds of the extreme New 
England Federalist leaders from the time Theodore 
Sedgwick threatened it in the debate over the As- 
sumption Bill. 3 

Hints of withdrawing from the Union if Virginia 
should become dominant crop out in their corre- 
spondence. The Republican repeal of the Judiciary 
Act immediately called forth many expressions in 
Federalist papers such as this from the Boston Pal- 
ladium of March 2, 1802: "Whether the rights and 
interests of the Eastern States would be perfectly 
safe when Virginia rules the nation is a problem easy 
to solve but terrible to contemplate. . . As ambitious 
Virginia will not be just, let valiant Massachusetts be 
zealous." 

Fisher Ames declared that "the federalists must 
entrench themselves in the State governments, and 
endeavor to make State justice and State power a 

1 Annals, 7th Cong. 1st Sess. 1235-36. 

2 lb. 1236. See also Channing, U.S. IV, 280-81. 
8 See vol. II, 62, of this work. 



98 JOHN MARSHALL 

shelter of the wise, and good, and rich, from the wild 
destroying rage of the southern Jacobins." * He 
thought the Federalists had neglected the press. 
"It is practicable," said he, "to rouse our sleeping 
patriotism — sleeping, like a drunkard in the snow. 
. . The newspapers have been left to the lazy or the 
ill-informed, or to those who undertook singly work 
enough for six." 2 

Pickering, the truculent, brave, and persistent, 
anticipated "a new confederacy. . . There will be — 
and our children at farthest will see it — a separa- 
tion. . . The British Provinces, even with the assent 
of Britain, will become members of the Northern 
Confederacy." 3 

The more moderate George Cabot, on the con- 
trary, thought that the strong defense made by the 
Federalists in Congress would induce the Republi- 
cans to cease their attacks on the National courts. 
"The very able discussions of the Judiciary Ques- 
tion," he wrote, " & great superiority of the Federal- 
ists in all the debates & public writings have mani- 
festly checked the career of the Revolutionists. 9 * 4 
But for once Cabot was wrong; the Republicans 
were jubilant and hastened to press their assault 
more vigorously than ever. 

1 Ames to Gore, Dec. 13, 1802, Ames, I, 310. 

2 lb. Here is another characteristic passage from Ames, who accu- 
rately expressed New England Federalist sentiment: "The second 
French and first American Revolution is now commencing. . . The 
extinction of Federalism would be followed by the ruin of the wise, 
rich, and good." (Ames to Smith, Dec. 14, 1802, ib. 313-16.) 

3 Pickering to Peters, Dec. 24, 1803, New-England Federalism: 
Adams, 338. 

* Cabot to King, March 27, 1802, King, iv, 94. 



THE ASSAULT ON THE JUDICIARY 99 

The Federalist newspapers teemed with long argu- 
ments against the repeal and laboriously strove, in 
dull and heavy fashion, to whip their readers into 
fighting humor. These articles were little more than 
turgid repetitions of the Federalist speeches in Con- 
gress, with a passage here and there of the usual 
Federalist denunciation. For instance, the Colum- 
bian Centinel, after restating the argument against 
the Repeal Act, thought that this "refutes all the 
absurd doctrines of the Jacobins upon that subject, 
. . and it will be sooner or later declared by the peo- 
ple, in a tone terrible to the present disorganizing 
party, to be the true construction of their constitu- 
tion, and the only one compatible with their safety 
and happiness." 1 

The Independent Chronicle, on the other hand, was 
exultant. After denouncing "the impudence and 
scurrility of the Federal faction," a correspondent 
of that paper proceeded in this fashion: "The Ju- 
diciary! The Judiciary! like a wreck on Cape Cod 
is dashing at every wave"; but, thank Heaven, 
"instead of the 'Essex Junto's' Judiciary we are 
sailing by the grace of God in the Washington 
Frigate — our judges are as at first and Mr. Jeffer- 
son has thought fit to practice the old navigation 
and steer with the same compass by which Admiral 
Washington regulated his log book. The Essex 
Junto may be afraid to trust themselves on board 
but every true Washington American will step on 
board in full confidence of a prosperous voyage. 
Huzza for the Washington Judiciary — no windows 
1 Columbian Centinel, April 7, 1802. 



100 JOHN MARSHALL 

broke — no doors burst in — free from leak — tight 
and dry." * 

Destiny was soon again to call John Marshall to 
the performance of an imperative duty. 

1 "Bowling" in the Independent Chronicle of April 26, 1802. An 
example of Jefferson's amazing skill in directing public opinion is 
found in the fact that the people were made to feel that the President 
was following in Washington's footsteps. 



CHAPTER III 

MARBURY VERSUS MADISON 

To consider the judges as the ultimate arbiters of all constitutional questions 
would place us under the despotism of an oligarchy. (Jefferson.) 
The constitution is either a superior paramount law, unchangeable by ordi- 
nary means, or it is on a level with ordinary legislative acts alterable when 
the legislature shall please to alter it. It is emphatically the province and 
duty of the judicial department to say what the law is. This is the very 
essence of judicial duty. (Marshall.) 

To have inscribed this vast truth of conservatism upon the public mind, so 
that no demagogue not in the last stages of intoxication denies it — this is 
an achievement of statesmanship which a thousand years may not exhaust 
or reveal all that is good. (Rufus Choate.) 

"Rawleigh, Jan? 2? 1803 

"My dearest Polly 

"You will laugh at my vexation when you hear 
the various calamaties that have befallen me. In 
the first place when I came to review my funds, I 
had the mortification to discover that I had lost 15 
silver dollars out of my waist coat pocket. They had 
worn through the various mendings the pocket had 
sustained & sought their liberty in the sands of 
Carolina. 

"I determined not to vex myself with what coud 
not be remedied & orderd Peter to take out my 
cloaths that I might dress for court when to my as- 
tonishment & grief after fumbling several minutes in 
the portmanteau, staring at vacancy, & sweating 
most profusely he turned to me with the doleful 
tidings that I had no pair of breeches. You may be 
sure this piece of inteligence was not very graciously 
receivd; however, after a little scolding I determined 



102 JOHN MARSHALL 

to make the best of my situation & immediately set 
out to get a pair made. 

" I thought I should be a sans culotte only one day 
& that for the residue of the term I might be well 
enough dressd for the appearance on the first day to 
be forgotten. But, the greatest of evils, I found, was 
followed by still greater ! Not a taylor in town coud 
be prevaild on to work for me. They were all so busy 
that it was impossible to attend to my wants how- 
ever pressing they might be, & I have the extreme 
mortification to pass the whole time without that 
important article of dress I have mentiond. I have 
no alleviation for this misfortune but the hope that I 
shall be enabled in four or five days to commence 
my journey homeward & that I shall have the pleas- 
ure of seeing you & our dear children in eight or nine 
days after this reaches you. 

"In the meantime I flatter myself that you are 
well & happy. 

"Adieu my dearest Polly 

I am your ever affectionate 

J Marshall." 1 

With the same unfailing light-heartedness which, 
nearly a quarter of a century before, had cheered his 
comrades at Valley Forge, John Marshall, Chief 
Justice of the United States, thus went about his 
duties and bore his troubles. Making his circuit in 
a battered gig or sulky, which he himself usually 
drove, absent-minded and laughing at himself for 
the mishaps that his forgetfulness and negligence 
1 Marshall to his wife, Jan. 2, 1803, MS. 



MARBURY VERSUS MADISON 103 

continually brought upon him, he was seemingly 
unperturbed in the midst of the political upheaval. 

Yet he was not at ease. Rufus King, still the 
American Minister to Great Britain, had finally 
settled the controversy over the British debts, upon 
the very basis laid down by Marshall when Secre- 
tary of State. 1 But Jefferson's Administration now 
did not hesitate to assert that this removal of one 
cause of conflict with Great Britain was the triumph 
of Republican diplomacy. Marshall, with unreserve 
so unlike him, reveals to King his disgust and sense 
of injury, and in doing so portrays the development 
of political conditions. 

"The advocates of the present administration 
ascribe to it great praise," wrote Marshall to our 
Minister in London, "for having, with so much dex- 
terity & so little loss, extricated our country from 
a debt of twenty -four million of dollars in which a 
former administration had involved it. . . The mor- 
tifying reflection obtrudes itself, that the reputation 
of the most wise & skilful conduct depends, in this 
our capricious world, so much on accident. Had 
Mr. Adams been reelected President of the United 
States, or had his successor been [a Federalist] . . a 
very different reception . . would have been given 
to the same measure. 

"The payment of a specific sum would then have 
been pronounced, by those who now take merit to 
themselves for it, a humiliating national degrada- 
tion, an abandonment of national interest, a free 
will offering of millions to Britain for her grace & 

1 See vol, ii, 502-05, of this work. 



104 JOHN MARSHALL 

favor, by those who sought to engage in a war with 
France, rather than repay, in part, by a small loan 
to that republic, the immense debt of gratitude we 
owe her." 

So speaks with bitter sarcasm the new Chief Jus- 
tice, and pessimistically continues: "Such is, & such 
I fear will ever be human justice!" He tells King 
that the Federalist "disposition to coalesce" with 
the Republicans, which seemed to be developing 
during the first few months after Jefferson's inaugu- 
ration, had disappeared; "but," he adds, "the minor- 
ity [Federalist Party] is only recovering its strength 
& firmness. It acquires nothing." Then, with the 
characteristic misgivings of a Federalist, he prophe- 
sies: "Our political tempests will long, very long, 
exist, after those who are now toss'd about by them 
shall be at rest." 1 

For more than five years 2 Marshall had foreseen 
the complicated and dangerous situation in which 
the country now found itself; and for more than a 
year 3 he had, in his ample, leisurely, simple manner 
of thinking, been framing the constructive answer 
which he was at last forced to give to the grave 
question : Who shall say with final authority what is 
and what is not law throughout the Republic? In 
his opinion in the case of Marbury vs. Madison, to 
which this chapter is devoted, we shall see how John 
Marshall answered this vital question. 

1 Marshall to King, May 5, 1802, King, iv, 116-18. 

2 Since the adoption of the Kentucky and Virginia Resolutions in 
1798. (See vol. n, chaps, x, XI, xn, of this work.) 

3 Since the Republican repeal of the Federalist Judiciary Act was 
proposed. See supra, 51. 



MARBURY VERSUS MADISON 105 

The philosophy of the Virginia and Kentucky 
Resolutions had now become the ruling doctrine of 
the Republican Party. The writer of the creed of 
State Rights sat in the Executive chair, while in 
House and Senate Virginia and her daughter Ken- 
tucky ruled the Republican majority. The two 
States that had declared the right and power of any 
member of the Union to pronounce a National law 
unconstitutional, and that had actually asserted a 
National statute to be null and void, had become 
the dominant force in the National Government. 

The Federalist majority in the legislatures of ten 
States, 1 it is true, had passed resolutions denouncing 
that anti-National theory, and had vigorously as- 
serted that the National Judiciary alone had the 
power to invalidate acts of Congress. 2 But in none of 

1 Maryland, Pennsylvania, New Jersey, Delaware, New York, 
Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Is- 
land. 

2 The Federalist majority in Vermont resolved that: "It belongs 
not to State Legislatures to decide on the constitutionality of laws 
made by the general government; this power being exclusively vested 
in the Judiciary Courts of the Union." (Records of Governor and Coun- 
cil of Vermont, iv, 529.) 

The Federalist majority in the Maryland Legislature asserted that 
"no state government . . is competent to declare an act of the federal 
government unconstitutional, . . that jurisdiction . . is exclusively 
vested in the courts of the United States." (Anderson, in Am. Hist. 
Rev. v, 248.) 

The New York Federalists were slow to act, but finally resolved 
"that the right of deciding on the constitutionality of all laws passed 
by Congress . . appertains to the judiciary department." (lb. 248- 
49.) 

Connecticut Federalists declared that the Kentucky and Virginia 
plan was "hostile to the existence of our national Union." (lb. 247.) 

In Delaware the then dominant party decided that the Kentucky 
and Virginia Resolutions were "not a fit subject" for their considera- 
tion, (lb. 246.) 

The Pennsylvania Federalist majority resolved that the people 



106 JOHN MARSHALL 

these States had the Republican minority concurred. 
In all of them the Republicans had vigorously fought 
the Federalist denial of the right and power of the 
States to nullify National laws, and had especially 
resisted the Federalist assertion that this power was 
in the National Judiciary. 

In the New York Legislature, forty-three Repub- 
licans voted solidly against the Federalist reply to 
Virginia and Kentucky, while the Federalists were 
able to muster but fifty votes in its favor. In Massa- 
chusetts, Pennsylvania, and Maryland, the Repub- 
lican opposition was determined and outspoken. 

The thirty- three Republicans of the Vermont 
Legislature cited, in their protest, the position 
which Marshall had taken on the Sedition Law in his 
campaign for Congress: * "We have ever been of an 
opinion, with that much and deservedly respected 
statesman, Mr. Marshall, (whose abilities and in- 

"have committed to the supreme judiciary of the nation the high au- 
thority of ultimately and conclusively deciding the constitutionality 
of all legislative acts." (Anderson, in Am. Hist. Rev. v, 245.) 

On February 8, 1799, Massachusetts replied to the Virginia Resolu- 
tions that: "This legislature are persuaded that the decision of all 
cases in law or equity, arising under the Constitution of the United 
States, and the construction of all laws made in pursuance thereof, 
are exclusively vested by the people in the Judicial Courts of the 
U. States." (Mass. Senate Journal, 1798-99, xix, 238, MS. volume 
Mass. State Library.) 

Such was the general tenor of the Federalists' pronouncements upon 
this grave problem. But because the people believed the Sedition 
Law to be directed against free speech, the Federalist supremacy in 
many of the States that insisted upon these sound Nationalist princi- 
ples was soon overthrown. 

The resolutions of the Republican minorities in the Legislatures of 
the Federalist States were emphatic assertions that any State might 
declare an act of Congress unconstitutional and disregard it, and that 
the National Judiciary did not have supervisory power over legislation. 

1 See vol. ii, 387-89, of this work. 



MARBURY VERSUS MADISON 107 

tegrity have been doubted by no party, and whose 
spirited and patriotic defence of his country's rights, 
has been universally admired) 1 that ' it was calcu- 
lated to create unnecessarily, discontents and jealous- 
ies, at a time, when our very existence as a nation 
may depend on our union.' " 2 

In Southern States, where the Federalists were 
dominant when Kentucky and Virginia adopted 
their famous Resolutions, the Republicans were, 
nevertheless, so strong that the Federalist majority 
in the Legislatures of those States dared not attempt 
to deny formally the new Republican gospel. 3 

So stood the formal record; but, since it had been 
written, the Jeffersonian propaganda had drawn 
scores of thousands of voters into the Republican 
ranks. The whole South had now decisively repu- 
diated Federalism. Maryland had been captured; 
Pennsylvania had become as emphatically Republi- 
can as Virginia herself; New York had joined her 
forces to the Republican legions. The Federalists 
still held New England and the States of Delaware 
and New Jersey, but even there the incessant Re- 
publican assaults, delivered with ever-increasing 
strength, were weakening the Federalist power. 
Nothing was plainer than that, if the Kentucky 
and Virginia Resolutions had been submitted to the 
Legislatures of the various States in 1801-1803, most 
of them would have enthusiastically endorsed them. 

Thus the one subject most discussed, from the 
campaign of 1800 to the time when Marshall deliv- 

1 Referring to Marshall's conduct in the French Mission. (See 
vol. ii, chaps, vii, vni, ix, of this work.) 

2 Anderson, in Am. Hist. Rev. v, 249. 3 lb. 235-37. 



108 JOHN MARSHALL 

ered his opinion in Marbury vs. Madison, was the all- 
important question as to what power, if any, could 
annul acts of Congress. 1 During these years popular 
opinion became ever stronger that the Judiciary 
could not do so, that Congress had a free hand so far 
as courts were concerned, and that the individual 
States might ignore National laws whenever those 
States deemed them to be infractions of the Consti- 
tution. As we have seen, the Republican vote in 
Senate and House, by which the Judiciary Act of 
1801 was repealed, was also a vote against the theory 
of the supervisory power of the National Judiciary 
over National legislation. 

Should this conclusion go unchallenged? If so, it 
would have the sanction of acquiescence and soon 
acquire the strength of custom. What then would 
become the condition of the country? Congress 
might pass a law which some States would oppose 
and which they would refuse to obey s but which 
other States would favor and of which they would 
demand the enforcement. What would this entail? 
At the very least it would provoke a relapse into 
the chaos of the Confederation and more probably 
civil war. Or a President might take it upon him- 
self to pronounce null and void a law of Congress, 
as Jefferson had already done in the matter of the 
Sedition Law, 2 and if House and Senate were of a 
hostile political party, Congress might insist upon 

1 The questions raised by the Kentucky and Virginia Resolutions 
were principal themes of debate in State Legislatures, in the press, in 
Congressional campaigns, and in the Presidential contest of 1800. 
The Judiciary debate of 1802 was, in part, a continuance of these 
popular discussions. 

2 See supra, 52. 



MARBURY VERSUS MADISON 109 

the observance of its legislation; but such a course 
would seriously damage the whole machinery of the 
National Government. 

The fundamental question as to what power could 
definitely pass upon the validity of legislation must 
be answered without delay. Some of Marshall's as- 
sociates on the Supreme Bench were becoming old 
and feeble, and death, or resignation enforced by 
illness, was likely at any moment to break the Na- 
tionalist solidarity of the Supreme Court; * and the 
appointing power had fallen into the hands of the 
man who held the subjugation of the National Ju- 
diciary as one of his chief purposes. 

Only second in importance to these reasons for 
Marshall's determination to meet the issue was the 
absolute necessity of asserting that there was one 
department of the Government that could not be 
influenced by temporary public opinion. The value 
to a democracy of a steadying force was not then 
so well understood as it is at present, but the Chief 
Justice fully appreciated it and determined at all 
hazards to make the National Judiciary the stabiliz- 
ing power that it has since become. It should be 
said, however, that Marshall no longer "idolized 
democracy," as he declared he did when as a young 
man he addressed the Virginia Convention of 1788. 2 
On the contrary, he had come to distrust popular 
rule as much as did most Federalists. 

1 Within a year after Marbury vs. Madison was decided, Albert 
Moore, one of the Federalist Associate Justices of the Supreme Court, 
resigned because of ill health and his place was filled by William 
Johnson, a Republican of South Carolina. 

2 See vol. I, 410, of this work. 



110 JOHN MARSHALL 

A case was then pending before the Supreme 
Court the decision of which might, by boldness and 
ingenuity, be made to serve as the occasion for that 
tribunal's assertion of its right and power to invali- 
date acts of Congress and also for the laying-down 
of rules for the guidance of all departments of the 
Government. This was the case of Marbury vs. 
Madison. 

Just before his term expired, 1 President Adams 
had appointed forty-two persons to be justices of 
the peace for the Counties of Washington and Al- 
exandria in the District of Columbia. 2 The Federal- 
ist Senate had confirmed these nominations, 3 and 
the commissions had been signed and sealed, but 
had not been delivered. When Jefferson was inaugu- 
rated he directed Madison, as Secretary of State, to 
issue commissions to twenty -five of the persons ap- 
pointed by Adams, but to withhold the commissions 
from the other seventeen. 4 

Among the latter were William Marbury, Dennis 
Ramsay, Robert Townsend Hooe, and William Har- 
per. These four men applied to the Supreme Court 
for a writ of mandamus compelling Madison to 
deliver their commissions. The other thirteen did 
not join in the suit, apparently considering the office 
of justice of the peace too insignificant to be worth 
the expense of litigation. Indeed, these offices were 
deemed so trifling that one of Adams's appointees to 

1 March 2, 1801. 

2 Journal of the Executive Proceedings of the Senate, i, 388. 

3 lb. 390. 

4 lb. 404. Jefferson did this because, as he said, the appointees of 
Adams were too numerous. 



MARBURY VERSUS MADISON 111 

whom Madison delivered a commission resigned, and 
five others refused to qualify. 1 

When the application of Marbury and his asso- 
ciates came before Marshall he assumed jurisdic- 
tion, and in December, 1801, issued the usual rule 
to Madison ordering him to show cause at the next 
term of the Supreme Court why the writ of manda- 
mus should not be awarded against him. Soon after- 
ward, as we have seen, Congress abolished the June 
session of the Supreme Court; 2 thus, when the court 
again convened in February, 1803, the case of Mar- 
bury vs. Madison was still pending. 

Marshall resolved to make use of this unimpor- 
tant litigation to assert, at the critical hour when 
such a pronouncement was essential, the power of the 
Supreme Court to declare invalid acts of Congress 
that violate the Constitution. 

Considering the fact that Marshall was an experi- 
enced politician, was intimately familiar with ths 
political methods of Jefferson and the Republican 
leaders, and was advised of their purposes, he could 
not have failed to realize the probable consequences 
to himself of the bold course he now determined to 
take. As the crawling months of 1802 wore on, no 
signs appeared that the Republican programme for 
overthrowing the independence of the Judiciary 
would be relinquished or modified. On the contrary, 
the coming of the new year (1803) found the second 
phase of the Republican assault determined upon. 

At the beginning of the session of 1803 the House 
impeached John Pickering, Judge of the United 

1 Journal, Exec. Proc. Senate, I, 417. 2 See supra, 94-97. 



112 JOHN MARSHALL 

States District Court for the District of New Hamp- 
shire. In Pennsylvania, the recently elected Re- 
publican House had impeached Judge Alexander 
Addison, and his conviction by a partisan vote was 
assured. Already the Republican determination to 
remove Samuel Chase from the Supreme Bench was 
frankly avowed. 1 

Moreover, the Republicans openly threatened to 
oust Marshall and his Federalist associates in case 
the court decided Marbury vs. Madison as the Re- 
publicans expected it would. They did not antici- 
pate that Marshall would declare unconstitutional 
that section of the old Federalist Judiciary Act of 
1789 under which the suit had been brought. In- 
deed, nobody imagined that the court would do that. 

Everybody apparently, except Marshall and the 
Associate Justices, thought that the case would be 
decided in Marbury's favor and that Madison 
would be ordered to deliver the withheld commis- 
sions. It was upon this supposition that the Repub- 
lican threats of impeachment were made. The Re- 
publicans considered Marbury's suit as a Federalist 
partisan maneuver and believed that the court's de« 
cision and Marshall's opinion would be inspired bj 
motives of Federalist partisanship. 2 

1 See infra, chap. iv. 

2 This belief is strikingly shown by the comment of the Republican 
press. For example, just before Marshall delivered his opinion, a cor- 
respondent of the Independent Chronicle of Boston sent from Wash- 
ington this article: 

"The efforts of federalism to exalt the Judiciary over the Executive 
and Legislature, and to give that favorite department a political char- 
acter & influence, may operate for a time to come, as it has already, 
to the promotion of one party and the depression of the other; but 



MARBURY VERSUS MADISON 113 

There was a particular and powerful reason for 
Marshall to fear impeachment and removal from 
office; for, should he be deposed, it was certain that 
Jefferson would appoint Spencer Roane of Virginia 
to be Chief Justice of the United States. It was 
well known that Jefferson had intended to appoint 
Roane upon the death of Chief Justice Ellsworth. 1 
But Ellsworth had resigned in time to permit Adams 
to appoint Marshall as his successor and thus thwart 
Jefferson's purpose. If now Marshall were removed, 
Roane would be given his place. 

Should he be succeeded by Roane, Marshall knew 
that the great principles of Nationalism, to the car- 
will probably terminate in the degradation and disgrace of the Judi- 
ciary. 

"Politics are more improper and dangerous in a Court of Justice, if 
possible, thau in the pulpit. Political charges, prosecutions, and simi- 
lar modes of official influence, ought never to have been resorted to by 
any part}'. The fountains of justice should be unpolluted by party 
passions and prejudices. 

"The attempt of the Supreme Court of the United States, by a man- 
damus, to control the Executive functions, is a new experiment. It 
seems to be no less than a commencement of war between the consti- 
tuted departments. 

"The Court must be defeated and retreat from the attack; or march 
on, till they incur an impeachment and removal from office. But our 
Republican frame of Government is so firm and solid, that there is 
reason to hope it will remain unshaken by the assaults of opposition, 
& the conflicts of interfering departments. 

"The will of the nation, deliberately and constitutionally expressed, 
must and will prevail, the predictions and exertions of federal mon- 
archists and aristocrats to the contrary notwithstanding." {Independ- 
ent Chronicle, March 10, 1803.) 

Marshall's opinion was delivered February 24. It took two weeks 
of fast traveling to go from Washington to Boston. Ordinary mail re- 
quired a few days longer. The article in the Chronicle was probably 
sent while Marbury vs. Madison was being argued. 

1 Dodd, in Am. Hist. Rev. xn, 776. Under the law Marshall's suc- 
cessor must come from Virginia or North Carolina. 



114 JOHN MARSHALL 

rying-out of which his life was devoted, would never 
be asserted by the National Judiciary. On the con- 
trary, the Supreme Court would become an engine 
for the destruction of every theory of government 
which Marshall held dear; for a bolder, abler, and 
more persistent antagonist of those principles than 
Spencer Roane did not exist. 1 Had he become Chief 
Justice those cases in which Marshall delivered opin- 
ions that vitalized the Constitution would have been 
decided in direct opposition to Marshall's views. 2 

But despite the peril, Marshall resolved to act. 
Better to meet the issue now, come what might, than 
to evade it. If he succeeded, orderly government 
would be assured, the National Judiciary lifted to 
its high and true place, and one element of National 
disintegration suppressed, perhaps destroyed. If he 
failed, the country would be in no worse case than 
that to which it was rapidly tending. 

No words in the Constitution gave the Judiciary 
the power to annul legislation. The subject had 
been discussed in the Convention, but the brief and 
scattering debate had arisen upon the proposition to 
make the President and Justices of the Supreme 

1 As President of the Court of Appeals of Virginia he later chal- 
lenged Marshall and brought about the first serious conflict between 
the courts of a State and the supreme tribunal of the Nation; and as 
a pamphleteer he assailed Marshall and his principles of Nationalism 
with unsparing rigor. (See vol. iv, chaps, in, and vi, of this work.) 

2 For example, in Fletcher vs. Peck, Roane would have held that 
the National Courts could not annul a State statute; in Martin os. 
Hunter's Lessees and in Cohen vs. Virginia, that the Supreme Court 
could not review the judgment of a State court; in McCulloch vs. 
Maryland, that Congress could not exercise implied powers, but only 
those expressly granted by the specific terms of the Constitution, etc. 
All this we know positively from Roane's own writings. (See vol. iv, 
chaps, m, vi, and vn, of this work.) 



MARBURY VERSUS MADISON 115 

Court members of a Council of Revision with power 
to negative acts of Congress. No direct resolution 
was ever offered to the effect that the Judiciary 
should be given power to declare acts of Congress 
unconstitutional. In the discussion of the proposed 
Council of Revision there were sharp differences of 
opinion on the collateral question of the right and 
wisdom of judicial control of legislative acts. 1 But, 

1 It seems probable, however, that it was generally understood by 
the leading men of the Convention that the Judiciary was to exercise 
the power of invalidating unconstitutional acts of Congress. (See 
Corwin: Doctrine of Judicial Review, 10-11; Beard: Supreme Court 
and the Constitution, 16-18; McLaughlin: The Courts, the Constitution 
and Parties, 32-35.) 

In the Constitutional Convention, Elbridge Gerry of Massachu- 
setts asserted that the judicial function of expounding statutes "in- 
volved a power of deciding on their Constitutionality." (Records of 
the Federal Convention of 1787: Farrand, I, 97.) Rufus King of Massa- 
chusetts — later of New York — was of the same opinion. (lb. 109.) 

On the other hand, Franklin declared that "it would be improper to 
put it in the power of any Man to negative a Law passed by the Legis- 
lature because it would give him the controul of the Legislature." (lb.) 

Madison felt "that no Man would be so daring as to place a veto 
on a Law that had passed with the assent of the Legislature." (lb.) 
Later in the debate, Madison modified his first opinion and declared 
that "a law violating a constitution established by the people them- 
selves, would be considered by the Judges null & void." (lb. ii, 93.) 

George Mason of Virginia said that the Judiciary "could declare an 
unconstitutional law void. . . He wished the further use to be made of 
the Judges of giving aid in preventing every improper law." (lb. 78.) 

Gouverneur Morris of Pennsylvania — afterwards of New York — 
dreaded "legislative usurpations" and felt that "encroachments of 
the popular branch . . ought to be guarded agst." (lb. 299.) 

Gunning Bedford, Jr., of Delaware was against any "check on the 
Legislative" with two branches. (lb. i, 100-01.) 

James Wilson of Pennsylvania insisted that power in the Judiciary 
to declare laws unconstitutional "did not go far enough" — the 
judges should also have "Revisionary power" to pass on bills in the 
process of enactment. (lb. n, 73.) 

Luther Martin of Maryland bad no doubt that the Judiciary had "a 
negative" on unconstitutional laws. (lb. 76.) 

John Francis Mercer of Maryland "disapproved of the Doctrine 



116 JOHN MARSHALL 

in the end, nothing was done and the whole subject 
was dropped. 

Such was the record of the Constitutional Conven- 
tion when, by his opinion in Marbury vs. Madison, 
Marshall made the principle of judicial supremacy 
over legislation as much a part of our fundamental 
law as if the Constitution contained these specific 
words: the Supreme Court shall have the power to 
declare invalid any act of Congress which, in the 
opinion of the court, is unconstitutional. 

In establishing this principle Marshall was to con- 
tribute nothing new to the thought upon the sub- 
ject. All the arguments on both sides of the question 
had been made over and over again since the Ken- 
tucky and Virginia Resolutions had startled the 
land, and had been freshly stated in the Judiciary 
debate in the preceding Congress. Members of the 
Federalist majority in most of the State Legislatures 
had expressed, in highly colored partisan rhetoric, 
every sound reason for the theory that the National 
Judiciary should be the ultimate interpreter of the 
Constitution. Both Federalist and Republican news- 
papers had printed scores of essays for and against 
that doctrine. 

In the Virginia Convention of 1788 Marshall had 
announced as a fundamental principle that if Con- 
that the Judges as expositors of the Constitution should have author- 
ity to declare a law void." (Records, Fed. Conv.: Farrand, 298.) 

John Dickinson of Delaware "thought no such power ought to 
exist," but was "at a loss what expedient to substitute." (lb. 299.) 

Charles Pinckney of South Carolina "opposed the interference of 
the Judges in the Legislative business." (lb. 298.) 

The above is a condensed precis of all that was said in the Consti- 
tutional Convention on this vital matter. 



MARBURY VERSUS MADISON 117 

gress should pass an unconstitutional law the courts 
would declare it void, 1 and in his reply to the address 
of the majority of the Virginia Legislature 2 he had 
elaborately, though with much caution and some 
mistiness, set forth his views. 3 Chief Justice Jay and 
his associates had complained that the Judiciary 
Act of 1789 was unconstitutional, but they had not 
had the courage to announce that opinion from the 
Bench. 4 Justices Iredell and Paterson, sitting as 
circuit judges, had claimed for the National Judi- 
ciary the exclusive right to determine the constitu- 
tionality of laws. Chief Justice Jay in charging a 
grand jury, and Associate Justice Wilson in a care- 
fully prepared law lecture, had announced the same 
conclusion. 

Various State judges of the Federalist faith, 
among them Dana of Massachusetts and Addison of 
Pennsylvania, had spoken to like effect. At the trial 
of Callender 5 Marshall had heard Chase deliver the 
opinion that the National Judiciary had the exclu- 
sive power to declare acts of Congress unconstitu- 
tional. 6 Jefferson himself had written Meusnier, the 
year before the National Constitution was framed, 
that the Virginia Legislature had passed unconsti- 
tutional laws, 7 adding: "I have not heard that in 
the other states they have ever infringed their con- 

1 See vol. I, 452, of this work. 2 The Virginia Resolutions. 

3 Address of the Minority, Jan. 22, 1799, Journal of the House of 
Delegates of Virginia, 1798-99, 90-95. 

4 Jay to Iredell, Sept. 15, 1790, enclosing statement to President 
Washington, Iredell: McRee, 293-96; and see letter of Jay to Wash- 
ington, Aug. 8, 1793, Jay : Johnston, in, 488-89. 

fi See supra, 40, footnote 1. 6 Wharton: State Trials, 715-18. 

7 Jefferson to Meusnier, Jan. 24, 1786, Works: Ford, v, 31-32. 



118 JOHN MARSHALL 

stitution; . . as the judges would consider any law as 
void which was contrary to the constitution," l 

Just as Jefferson, in writing the Declaration of In- 
dependence, put on paper not a single new or original 
idea, but merely set down in clear and compact form 
what had been said many times before, 2 so Marshall, 
in his opinion in Marbury vs. Madison, did nothing 
more than restate that which had previously been 
declared by hundreds of men. Thomas Jefferson and 
John Marshall as private citizens in Charlottesville 
and Richmond might have written Declarations and 
Opinions all their lives, and to-day none but the 
curious student would know that such men had ever 
lived. It was the authoritative position which these 
two great Americans happened to occupy and the 
compelling emergency for the announcement of the 
principles they expressed, as well as the soundness 
of those principles, that have given immortality to 
their enunciations. 

Learned men have made exhaustive research for 
legal decisions by which Marshall's footsteps may 
have been guided, or which, at least, would justify 
his conclusion in Marbury vs. Madison. 3 The cases 
thus discovered are curious and interesting, but it is 

1 Jefferson to Meusnier, Jan. 24, 1786, Works: Ford, v, 14-15. (Ital- 
ics the author's.) 

2 For instance, the Legislature of Rhode Island formally declared 
Independence almost two months before Congress adopted the pro- 
nouncement penned by Jefferson, and Jefferson used many of the very 
words of the tiny colony's defiance. In her Declaration of Independ- 
ence in May, 1776, Virginia set forth most of the reasons stated by 
Jefferson a few weeks later in similar language. 

3 For these cases and references to studies of the question of judi« 
cial supremacy over legislation, see Appendix C. 



MARBURY VERSUS MADISON 119 

probable that Marshall had not heard of many of 
them. At any rate, he does not cite one of them in 
the course of this opinion, although no case ever 
was decided in which a judge needed so much the 
support of judicial precedents. Neither did he know 
anything whatever of what was said on the subject 
in the Constitutional Convention, unless by hear- 
say, for its sessions were secret * and the Journals 
were not made public until 1819 — thirty years 
after the Government was established, and sixteen 
years after Marbury vs. Madison was decided. 2 Nor 
was Marshall informed of the discussions of the 
subject in the State Conventions that ratified the 
Constitution, except of those that took place in 
the Virginia Convention. 3 

On the other hand, he surely had read the Judiciary 
debate in Congress, for he was in the Capital when 
that controversy took place and the speeches were 
fully reported in the Washington press. Marshall 
probably was present in the Senate and the House 
when the most notable arguments were made. 4 
More important, however, than written decisions or 
printed debates in influencing Marshall's mind was 
The Federalist, which we know he read carefully. In 
number seventy -eight of that work, Hamilton stated 
the principle of judicial supremacy which Marshall 
whole-heartedly adopted in Marbury vs. Madison. 

1 See vol. i, 323, of this work. 

2 See Records Fed. Conv.: Farrand, i, Introduction, xii. 

3 Elliot's Debates were not published until 1827-30. 

4 Until very recently Justices of the Supreme Court often came 
to the Senate to listen to debates in which they were particularly 
interested. 



120 JOHN MARSHALL 

"The interpretation of the laws," wrote Hamil- 
ton, "is the proper and peculiar province of the 
courts. A constitution is, in fact, and must be re- 
garded by the judges, as a fundamental law. It 
therefore belongs to them to ascertain its meaning, 
as well as the meaning of any particular act pro- 
ceeding from the legislative body. If there should 
happen to be an irreconcilable variance between the 
two, . . the Constitution ought to be preferred to 
the statute, the intention of the people to the inten- 
tion of their agents." x 

In this passage Hamilton merely stated the gen- 
eral understanding of nearly all the important fram- 
ers of the Constitution. Beyond question, Marshall 
considered that principle to have been woven into 
the very fiber of the Nation's fundamental law. 

In executing his carefully determined purpose to 
have the Supreme Court formally announce the ex- 
clusive power of that tribunal as the authority of 
last resort to interpret the Constitution and deter- 
mine the validity of laws by the test of that instru- 
ment, Marshall faced two practical and baffling 
difficulties, in addition to those larger and more 
forbidding ones which we have already considered. 

The first of these was the condition of the Su- 
preme Court itself and the low place it held in the 
public esteem; from the beginning it had not, as a 
body, impressed the public mind with its wisdom, 
dignity, or force. 2 The second obstacle was techni- 

1 The Federalist: Lodge, 485-86. Madison also upheld the same 
doctrine. Later he opposed it, but toward the end of his life returned 
to his first position. (See vol. iv, chap, x, of this work.) 

2 John Jay had declined reappointment as Chief Justice because. 



MARBURY VERSUS MADISON 121 

cal and immediate. Just how should Marshall de- 
clare the Supreme Court to be the ultimate arbiter 
of conflicts between statutes and the Constitution? 
What occasion could he find to justify, and seem- 
ingly to require, the pronouncement as the judg- 
ment of the Supreme Court of that opinion now 
imperatively demanded, and which he had resolved 
at all hazards to deliver? 

among other things, he was "perfectly convinced" that the National 
Judiciary was hopelessly weak. (See supra, 55.) The first Chief Jus- 
tice of the United States at no moment, during his occupancy of that 
office, felt sure of himself or of the powers of the court. (See Jay to 
his wife, Jay: Johnston, in, 420.) Jay had hesitated to accept the 
office as Chief Justice when Washington tendered it to him in 1789, 
and he had resigned it gladly in 1795 to become the Federalist candi- 
date for Governor of New York. 

Washington offered the place to Patrick Henry, who refused it. 
(See Henry: Patrick Henry — Life, Correspondence and Speeches, u, 
562-63; also Tyler, 1, 183.) The office was submitted to William Cush- 
ing, an Associate Justice of the Supreme Court, and he also refused to 
consider it. (Wharton: State Trials, 33.) So little was a place on the 
Supreme Bench esteemed that John Rutledge resigned as Associate 
Justice to accept the office of Chief Justice of the Supreme Court of 
South Carolina. (lb. 35.) 

Jefferson considered that the government of New Orleans was "the 
second office in the United States in importance." (Randal, in, 202.) 
For that matter, no National office in Washington, except the Presi- 
dency, was prized at this period. Senator Bailey of New York actu- 
ally resigned his seat in the Senate in order to accept the office of 
Postmaster at New York City. (Memoirs, J. Q. A.: Adams, i, 290.) 
Edmund Randolph, when Attorney-General, deplored the weaken- 
ing of the Supreme Court, and looked forward to the time when it 
should be strengthened. (Randolph to Washington, Aug. 5, 1792, 
Writings of George Washington: Sparks, x, 513.) 

The weakness of the Supreme Court, before Marshall became Chief 
Justice, is forcibly illustrated by the fact that in designing and 
building the National Capitol that tribunal was entirely forgotten and 
no chamber provided for it. (See Hosea Morrill Knowlton in John 
Marshall — Life, Character and Judicial Services: Dillon, i, 198-99.) 
When the seat of government was transferred to Washington, the 
court crept into an humble apartment in the basement beneath the 
Senate Chamber. 



122 JOHN MARSHALL 

When the Republicans repealed the Federalist 
Judiciary Act of 1801, Marshall had actually pro- 
posed to his associates upon the Supreme Bench 
that they refuse to sit as circuit judges, and "risk 
the consequences." By the Constitution, he said, 
they were Judges of the Supreme Court only; their 
commissions proved that they were appointed solely 
to those offices; the section requiring them to sit in 
inferior courts was unconstitutional. The other 
members of the Supreme Court, however, had not 
the courage to adopt the heroic course Marshall 
recommended. They agreed that his views were 
sound, but insisted that, because the Ellsworth 
Judiciary Act had been acquiesced in since the adop- 
tion of the Constitution, the validity of that act 
must now be considered as established. 1 So Mar- 
shall reluctantly abandoned his bold plan, and in 
the autumn of 1802 held court at Richmond as cir- 
cuit judge. To the end of his life, however, he held 
firmly to the opinion that in so far as the Republi- 
can Judiciary Repeal Act of 1802 deprived National 
judges of their offices and salaries, that legislation 
was unconstitutional. 2 

Had the circuit judges, whose offices had just been 
taken from them, resisted in the courts, Marshall 
might, and probably would, have seized upon the 
issue thus presented to declare invalid the act by 
which the Republicans had overturned the new 
Federalist Judiciary system. Just this, as we have 

1 New York Review, in, 347. The article on Chief Justice Marshall 
in this periodical was written by Chancellor James Kent, although his 
name does not appear. 

2 See vol. iv, chap. ix. 



MARBURY VERSUS MADISON 123 

seen, the Republicans had expected him to do, and 
therefore had so changed the sessions of the Supreme 
Court that it could not render any decision for more 
than a year after the new Federalist courts were 
abolished. 

Certain of the deposed National judges had, in- 
deed, taken steps to bring the "revolutionary" Re- 
publican measure before the Supreme Court, 1 but 
their energies nagged, their hearts failed, and their 
only action was a futile and foolish protest to the 
very Congress that had wrested their judicial seats 
from under them. 2 Marshall was thus deprived of 
that opportunity at the only time he could have 
availed himself of it. 

A year afterward, when Marbury vs. Madison 
came up for decision, the entire National Judiciary 
had submitted to the Republican repeal and was 
holding court under the Act of 1789. 3 This case, 

1 See Tilghman to Smith, May 22, 1802, Morison: Smith, 148-49. 
"A general arrangement [for action on behalf of the deposed judges] 

will be attempted before we separate. It is not descrete to say more at 
present." (Bayard to Bassett, April 19, 1802, Bayard Papers: Don- 
nan, 153.) 

2 See "Protest of Judges," American State Papers, Miscellaneous, 
I, 340. 

Writing to Wolcott, now one of the displaced National circuit 
judges (Wolcott's appointment was secured by Marshall; see vol. II, 
559, of this work), concerning "the outrage committed by Congress on 
the Constitution" (Cabot to Wolcott, Dec. 20, 1802, Lodge: Cabot, 
328), Cabot said: " I cannot but approve the intention of your judicial 
corps to unite in a memorial or remonstrance to Congress." He con- 
sidered this to be "a manifest duty" of the judges, and gave Wolcott 
the arguments for their action. (Cabot to Wolcott, Oct. 21, 1802, ib. 
327-28.) 

A proposition to submit to the Supreme Court the constitutionality 
of the Repeal Act was rejected January 27, 1803. (Annals, 7th Cong. 
2d Sess. 439.) 

3 See infra, 130, 131. 



124 JOHN MARSHALL 

then, alone remained as the only possible occasion 
for announcing, at that critical time, the supervisory 
power of the Judiciary over legislation. 

Marshall was Secretary of State when President 
Adams tardily appointed, and the Federalist Senate 
confirmed, the forty-two justices of the peace for the 
District of Columbia, 1 and it was Marshall who had 
failed to deliver the commissions to the appointees. 
Instead, he had, with his customary negligence of 
details, left them on his desk. Scarcely had he ar- 
rived at Richmond, after Jefferson's inauguration, 
when his brother, James M. Marshall, wrote him of 
the plight in which the newly appointed justices 
of the peace found themselves as the result of Mar- 
shall's oversight. 

The Chief Justice replied: "I learn with infinite 
chagrin the ' development of principle ' mentioned in 
yours of the 12th," — sarcastically referring to the 
Administration's conduct toward the Judiciary, — 
" & I cannot help regreting it the more as I fear some 
blame may be imputed to me. . . 

"I did not send out the commissions because I ap- 
prehended such as were for a fixed time to be com- 
pleted when signed & sealed & such as depended on 
the will of the President might at any time be re- 
voked. To withhold the commission of the Marshal 
is equal to displacing him which the President, I 
presume, has the power to do, but to withhold the 
commissions of the Justices is an act of which I en- 
tertaind no suspicion. I should however have sent 
out the commissions which had been signed & sealed 

1 See supra, 110. 



MARBURY VERSUS MADISON 126 

but for the extreme hurry of the time & the absence 
of Mr. "Wagner [Clerk of the State Department] 
who had been called on by the President to act as his 
private secretary." * 

Marshall, it thus appears, was thoroughly familiar 
with the matter when the application of Marbury 
and his three associates came before the Supreme 
Court, and took in it a keen and personal interest. 
By the time 2 the case came on for final disposition 
the term had almost half expired for which Marbury 
and his associates had been appointed. The other 
justices of the peace to whom Madison had deliv- 
ered commissions were then transacting all the busi- 
ness that required the attention of such officials. 
It was certain, moreover, that the Administration 
would not recognize Marbury and his associates, no 
matter what Marshall might decide. In fact, these 
appointees must have lost all interest in the contest 
for offices of such slight dignity and such insignifi- 
cant emoluments. 

So far, then, as practical results were concerned, 
the case of Marbury vs. Madison had now come to 
the point where it was of no consequence whatever 
to any one. It presented only theoretical questions, 
and, on the face of the record, even these were as 
simple as they were unimportant. This controversy, 
in fact, had degenerated into little more than " a moot 
case," as Jefferson termed it twenty years later. 3 

At the hearing it was proved that the commissions 

1 Marshall to James M. Marshall, March 18, 1801, MS. 

2 February, 1803. 

3 Jefferson to Johnson, June 12, 1823, Works: Ford, xn, footnote to 
256. 



126 JOHN MARSHALL 

had been signed and sealed. One witness was Mar- 
shall's brother, James M. Marshall. Jefferson's 
Attorney-General, Levi Lincoln, was excused from 
testifying as to what finally became of them. Madi- 
son refused to show cause and denied, by utterly 
ignoring, the jurisdiction of the Supreme Court to 
direct or control him in his administration of the 
office of Secretary of State. 1 

Charles Lee, former Attorney-General, counsel for 
the applicants, argued the questions which he and 
everybody else thought were involved. He main- 
tained that a mandamus was the proper remedy, 
made so not only by the nature of the relation of the 
Supreme Court to inferior courts and ministerial 
officers, but by positive enactment of Congress in 
the Judiciary Law of 1789. Lee pointed out that 
the Supreme Court had acted on this authority in 
two previous cases. 

Apparently the court could do one or the other 
of two things: it could disavow its power over any 
branch of the Executive Department and dismiss the 
application, or it could assert this power in cases like 
the one before it and command Madison to deliver 
the withheld commissions. It was the latter course 
that the Republicans expected Marshall to take. 

If the Chief Justice should do this, Madison 
undoubtedly would ignore the writ and decline to 
obey the court's mandate. Thus the Executive and 
Judicial Departments would have been brought into 
direct conflict, with every practical advantage in 
the hands of the Administration. The court had no 
1 See 1 Cranck, 137-80. 



MARBURY VERSUS MADISON 127 

physical means to compel the execution of its order. 
Jefferson would have denounced the illegality of 
such a decision and laughed at the court's predica- 
ment. In short, had the writ to Madison been issued, 
the court would have been powerless to enforce 
obedience to its own mandate. 

If, on the contrary, the court dismissed the case, 
the Republican doctrines that the National courts 
could not direct executives to obey the laws, and 
that the Judiciary could not invalidate acts of Con- 
gress, would by acquiescence have been admitted. 

No matter which horn of the dilemma Marshall 
selected, it was hard to see how his views could 
escape impalement. He chose neither. Instead of 
allowing his cherished purpose of establishing the 
principle of supervisory power of the Judiciary over 
legislation to be thus wounded and perhaps fatally 
injured, he made the decision of this insignificant 
case — about which the applicants themselves no 
longer cared — the occasion for asserting that prin- 
ciple. And he did assert that principle — asserted it 
so impressively that for more than a century his con- 
clusion has easily withstood repeated assaults upon 
it, which still continue. 

Marshall accomplished his purpose by convincing 
the Associate Justices of the unconstitutionality of 
that section of the Ellsworth Judiciary Act of 1789 1 

1 Section 13 provided, among other things, that "the Supreme 
Court . . shall have power to issue writs of prohibition to the district 
courts . . and writs of mandamus, in cases warranted by the principles 
and usages of law, to any courts appointed, or persons holding office, 
under the authority of the United States." (U.S. Statutes at Large, I, 
73; Annals, 1st Cong. 2d Sess. 2245.) 



128 JOHN MARSHALL 

which expressly conferred upon the Supreme Court 
the power to issue writs of mandamus and prohibi- 
tion, and in persuading them to allow him to an- 
nounce that conclusion as the opinion of the court. 
When we consider that, while all the Justices agreed 
with Marshall that the provision of the Ellsworth 
Judiciary Law requiring them to sit as circuit judges 
was unconstitutional, and yet refused to act upon 
that belief as Marshall wanted them to act, we can 
realize the measure of his triumph in inducing the 
same men to hold unconstitutional another provision 
of the same act — a provision, too, even less open 
to objection than the one they had sustained. 

The theory of the Chief Justice that Section 13 
of the old Judiciary Law was unconstitutional was 
absolutely new, and it was as daring as it was novel. 
It was the only original idea that Marshall con- 
tributed to the entire controversy. Nobody ever 
had questioned the validity of that section of the 
statute which Marshall now challenged. Ellsworth, 
who preceded Marshall as Chief Justice, had drawn 
the act when he was Senator in the First Congress; l 
he was one of the greatest lawyers of his time and 
an influential member of the Constitutional Con- 
vention. 

One of Marshall's associates on the Supreme 
Bench at that very moment, William Paterson, had 
also been, with Ellsworth, a member of the Senate 
Committee that reported the Judiciary Act of 1789, 
and he, too, had been a member of the Constitu- 
tional Convention. Senators Gouverneur Morris of 

1 See supra, 53-54. 




MOORE WASHINGTON 

Associate Justices sitting with Marshall in the case of Marbury versus Madison 



MARBURY VERSUS MADISON 129 

New York, William S. Johnson of Connecticut, 
Robert Morris of Pennsylvania, William Few of 
Georgia, George Read and Richard Bassett of Dela- 
ware, and Caleb Strong of Massachusetts supported 
the Ellsworth Law when the Senate passed it; and 
in the House James Madison and George Wythe of 
Virginia, Abraham Baldwin of Georgia, and Roger 
Sherman of Connecticut heartily favored and voted 
for the act. Most of these men were thorough law- 
yers, and every one of them had also helped to draft 
the National Constitution. Here were twelve men, 
many of them highly learned in the law, makers of 
the Constitution, draftsmen or advocates and sup- 
porters of the Ellsworth Judiciary Act of 1789, not 
one of whom had ever dreamed that an important 
section of that law was unconstitutional. 1 

Furthermore, from the organization of the Su- 
preme Court to that moment, the bench and bar had 
accepted it, and the Justices of the Supreme Court, 
sitting with National district judges, had recognized 
its authority when called upon to take action in a 
particular controversy brought directly under it. 2 
The Supreme Court itself had held that it had juris- 
diction, under Section 13, to issue a mandamus in a 
proper case, 3 and had granted a writ of prohibition 
by authority of the same section. 4 In two other 
cases this section had come before the Supreme 

1 See Dougherty : Power of the Federal Judiciary over Legislation, 82. 
Professor Corwin says that not many years later Marshall concurred 

in an opinion of the Supreme Court which, by analogy, recognized the 
validity of it. (Corwin, 8-9.) 

2 U.S. tw. Ravara, 2 Dallas, 297. 

3 U.S. vs. Lawrence, 3 Dallas, 42. 4 U.S. vs. Peters, ib. 121. 



130 JOHN MARSHALL 

Court, and no one had even intimated that it was 
unconstitutional. 1 

When, to his great disgust, Marshall was forced 
to sit as a circuit judge at Richmond in the winter of 
1802, a case came before him that involved both the 
validity of the Republican Repeal Act and also the 
constitutionality of that provision of the Ellsworth 
Judiciary Law requiring justices of the Supreme 
Court to sit as circuit judges. This was the case of 
Stuart vs. Laird. Marshall held merely that the plea 
which raised these questions was insufficient, and 
the case was taken to the Supreme Court on a writ 
of error. After extended argument Justice Paterson 
delivered the opinion of the court, Marshall declin- 
ing to participate in the decision because he had 
"tried the cause in the court below." 2 

At the same term, then, at which Marbury vs. 
Madison was decided, and immediately after Mar- 
shall's opinion in that case was delivered, all the 
justices of the Supreme Court except the Chief Jus- 
tice, held "that practice and acquiescence under it 
[the Judiciary Act of 1789] for a period of several 
years, commencing with the organization of the 

1 In the argument of Marbury vs. Madison, Charles Lee called 
Marshall's attention to the case of U.S. vs. Hopkins, in the February- 
term, 1794, in which a motion was made for a mandamus to Hopkins 
as loan officer for the District of Virginia, and to the case of one John 
Chandler of Connecticut, also in February, 1794, in which a motion 
was made in behalf of Chandler for a mandamus to the Secretary of 
War. These cases do not seem to have been reported, and Lee must 
have referred to manuscript records of them. (See 1 Cranch, 148-49.) 

Samuel W. Dana of Connecticut also referred to the Chandler case 
during the Judiciary debate in the House, March, 1802. (See Annals, 
7th Cong. 1st Sess. 903-04.) 

2 1 Cranch, 308. 



MARBURY VERSUS MADISON 131 

judicial system . . has fixed the construction. It is 
a contemporary interpretation of the most forcible 
nature. This practical exposition is too strong and 
obstinate to be shaken or controlled. Of course, the 
question is at rest, and ought not now to be dis- 
turbed." 1 

But the exigency disclosed in this chapter re- 
quired immediate action, notwithstanding the ob- 
stacles above set forth. The issue raised by the 
Republicans — the free hand of Congress, unre- 
strained by courts — must be settled at that time or 
be abandoned perhaps forever. The fundamental 
consideration involved must have a prompt, firm, 
and, if possible, final answer. Were such an answer 
not then given, it was not certain that it could ever 
be made. As it turned out, but for Marbury vs. 
Madison, the power of the Supreme Court to annul 
acts of Congress probably would not have been 
insisted upon thereafter. For, during the thirty- 
two years that Marshall remained on the Supreme 
Bench after the decision of that case, and for twenty 
years after his death, no case came before the court 
where an act of Congress was overthrown; and 
none had been invalidated from the adoption of the 
Constitution to the day when Marshall delivered his 
epochal opinion. So that, as a matter of historical 
significance, had he not then taken this stand, 
nearly seventy years would have passed without 
any question arising as to the omnipotence of Con- 
gress. 2 After so long a period of judicial acquiescence 

1 Stuart vs. Laird, 1 Cranch, 309. 

2 The next case in which the Supreme Court overthrew an act of 



132 JOHN MARSHALL 

in Congressional supremacy it seems likely that op- 
position to it would have been futile. 

For the reasons stated, Marshall resolved to take 
that step which, for courage, statesmanlike fore- 
sight, and, indeed, for perfectly calculated audacity, 
has few parallels in judicial history. In order to 
assert that in the Judiciary rested the exclusive 
power * to declare any statute unconstitutional, and 
to announce that the Supreme Court was the ul- 
timate arbiter as to what is and what is not law 
under the Constitution, Marshall determined to an- 
nul Section 13 of the Ellsworth Judiciary Act of 
1789. In taking such a step the Chief Justice made 
up his mind that he would sum up in final and 
conclusive form the reasoning that sustained that 
principle. 

Marshall resolved to go still further. He would 
announce from the Supreme Bench rules of proced- 
ure which the Executive branch of the Government 
must observe. This was indispensable, he correctly 
thought, if the departments were to be harmonious 
branches of a single and National Government, 
rather than warring factions whose dissensions must 
in the end paralyze the administration of the Na- 
tion's affairs. 2 

Congress was that of Scott vs. Sandford — the famous Dred Scott 
case, decided in 1857. In this case the Supreme Court held that Con- 
gress had no power to prohibit slavery in the territory purchased from 
France in 1803 (the Louisiana Purchase), and that the Act of March 6, 
1820, known as the Missouri Compromise, was unconstitutional, null, 
and void. (See Scott vs. Sandford, 19 Howard, 393 et seq.) 

1 The President can veto a bill, of course, on the ground of uncon- 
stitutionality; but, by a two thirds vote, Congress can pass it over the 
Executive's disapproval. 

2 Carson, i, 203; and see especially Adams: U.S. I, 192. 



MARBURY VERSUS MADISON 133 

It was not, then, Marshall's declaring an act of 
Congress to be unconstitutional that was innovat- 
ing or revolutionary. The extraordinary thing was 
the pretext he devised for rendering that opinion — 
a pretext which, it cannot be too often recalled, had 
been unheard of and unsuspected hitherto. Nothing 
but the emergency compelling the insistence, at this 
particular time, that the Supreme Court has such 
a power, can fully and satisfactorily explain the 
action of Marshall in holding this section void. 

In his opinion the Chief Justice spoke of "the 
peculiar delicacy of this case, the novelty of some of 
its circumstances, and the real difficulty attending 
the points which occur in it." x He would follow, he 
said, the points of counsel in the order in which 
they had been made. 2 Did the applicants have a 
right to the commissions? This depended, he said, 
on whether Marbury had been appointed to office. 
If so, he was entitled to the commission which was 
merely the formal evidence of the appointment. 
The President had nominated him to the Senate, 
the Senate had confirmed the nomination, the Pres- 
ident had signed the commission, and, in the man- 
ner directed by act of Congress, the Secretary of 
State had affixed to it the seal of the United States. 3 

The President could not recall his appointment if 
"the officer is not removable." Delivery of the com- 
mission was not necessary to the consummation of 
the appointment which had already been effected; 

1 1 Cranch, 154. 

2 This seems to have been inaccurate. Compare Lee's argument 
with Marshall's opinion. 

3 1 Cranch, 158. 



134 JOHN MARSHALL 

otherwise "negligence, . . fraud, fire or theft, might 
deprive an individual of his office." But the truth 
was that "a copy from the record . . would be, to 
every intent and purpose, equal to the original." 1 
The appointment of Marbury "vested in the officer 
legal rights . . of his country," and "to withhold his 
commission is an act . . not warranted by law, but 
violative of a vested legal right. . . 2 

"The very essence of civil liberty," continues 
Marshall, "certainly consists in the right of every 
individual to claim the protection of the laws, when- 
ever he receives an injury. One of the first duties 
of government is to afford that protection." Ours 
has been "emphatically termed a government of 
laws, and not of men. It will certainly cease to de- 
serve this high appellation, if the laws furnish no 
remedy for the violation of a vested legal right. . . 3 

"The act of delivering or withholding a commis- 
sion" is not "a mere political act, belonging to the 
executive department alone," but a ministerial act, 
the performance of which is directed by statute. 
Congress had ordered the Secretary of War to place 
the names of certain persons on the pension rolls; 
suppose that he should refuse to do so? "Would the 
wounded veteran be without remedy? . . Is it to be 
contended that the heads of departments are not 
amenable to the laws of their country?" 4 

Would any person whatever attempt to maintain 
that a purchaser of public lands could be deprived of 
his property because a Secretary of State withheld 
his patent? 5 To be sure, the President had certain 

1 1 Cranch, 160. 2 lb. 162. 3 lb. 163. i lb. 164. 5 lb. 165, 



MAKBURY VERSUS MADISON 135 

political powers and could appoint agents to aid him 
in the exercise of them. The courts had no authority 
to interfere in this sphere of Executive action. For 
example, the conduct of foreign affairs by the Secre- 
tary of State, as the representative of the President, 
can never be examinable by the courts. But the 
delivery of a commission to an office or a patent 
to land was a different matter. 

When Congress by statute peremptorily directs 
the Secretary of State or any other officer to perform 
specific duties on which "the rights of individuals 
are dependent . . he cannot at his discretion sport 
away the vested rights of others." If he attempts to 
do so he is answerable to the courts. "The ques- 
tion whether a right has vested or not, is, in its na- 
ture, judicial, and must be tried by the judicial author- 
ity." The court therefore was empowered to decide 
the point; and held that Madison's refusal to deliver 
Marbury's commission was "a plain violation of that 
right, for which the laws of his country afford him a 
remedy." 1 

But was this remedy the writ of mandamus for 
which Marbury had applied? It was, said Marshall; 
but could such an order be directed to the Secretary 
of State? This was a task "peculiarly irksome, 
as well as delicate," 2 for, he observed, there were 
those who would at first consider it "as an attempt 
to intrude into the cabinet, and to intermeddle with 
the prerogatives of the executive." Far be it from 
John Marshall to do such a thing. He need hardly 
"disclaim all pretensions to such jurisdiction." Not 

1 1 Cranch, 166-68. J lb. 169. 



136 JOHN MARSHALL 

"for a moment" would he entertain "an extrav- 
agance so absurd and excessive. . . Questions in 
their nature political, . . can never be made in this 
court." But if the case before him presented only 
questions concerning legal rights of an individual, 
"what is there in the exalted station" of the Sec- 
retary of State which "exempts him from . . being 
compelled to obey the judgment of the law"? The 
only remaining question, therefore, was whether a 
mandamus could issue from the Supreme Court. 1 

In such manner Marshall finally arrived at the 
examination of the constitutionality of Section 13, 
which, he said, fitted the present case "precisely 5 '; 
and "if this court is not authorized to issue a writ of 
mandamus" to Madison, "it must be because the 
law is unconstitutional, and therefore absolutely in- 
capable of conferring the authority." 2 In reaching 
this point Marshall employs almost seven thousand 
words. Fifteen hundred more words are used before 
he takes up the principle of judicial supremacy over 
legislation. 

The fundamental law of the Nation, Marshall ex- 
plained, expressly defined the original jurisdiction of 
the Supreme Court and carefully limited its author- 
ity. It could take original cognizance only of specific 
cases. In all others, the court was given nothing 
but "appellate jurisdiction." But he omitted the 
words that immediately follow in the same sentence 
— "with such exceptions . . as the Congress shall 
make." Yet this language had, for fourteen years, 
apparently been considered by the whole bench and 

1 1 Cranch, 170. a lb. 173. 



MARBURY VERSUS MADISON 137 

bar as meaning, among other things, that while Con- 
gress could not take from the Supreme Court original 
jurisdiction in the cases specifically named in Article 
Three of the Constitution, Congress could add other 
cases to the original jurisdiction of the Supreme 
Court. 

Marshall was quite conscious of all this, it would 
seem. In the argument, counsel had insisted that 
since "the clause, assigning original jurisdiction to 
the Supreme Court, contains no negative or restric- 
tive words, the power remains to the legislature, to 
assign original jurisdiction to that court in other 
cases than those specified." 1 But, reasons Marshall, 
in answer to this contention, if Congress could thus 
enlarge the original jurisdiction of the Supreme 
Court, "the subsequent part of the section 2 is mere 
surplusage, is entirely without meaning, . . is form 
without substance. . . Affirmative words are often 
. . negative of other objects than those affirmed; 
and in this case, a negative or exclusive sense must 
be given to them, or they have no operation at all" 3 

That is to say, when the Constitution conferred 
upon the Supreme Court original jurisdiction in 
specified cases, it thereby excluded all others — de- 
nied to Congress the power to add to the jurisdiction 
thus affirmatively granted. And yet, let it be re- 
peated, by giving original jurisdiction in cases spe- 
cifically named, the Constitution put it beyond the 
power of Congress to interfere with the Supreme 

1 1 Cranch, 174. 

2 In all "other cases . . the Supreme Court shall have appellate 
jurisdiction . . with such exceptions . . as the Congress shall make." 

' lb. 174. (Italics the author's.) 



138 JOHN MARSHALL 

Court in those cases; but Marshall asserted that 
the specific grant of jurisdiction has "wo operation 
at all" unless "a negative or exclusive sense" be 
given it. 1 

Marshall boldly held, therefore, that Section 13 of 
the Ellsworth Judiciary Act was "not warranted by 
the Constitution." Such being the case, ought the 
Supreme Court to act under this unconstitutional 
section? As the Chief Justice stated the question, 
could "an act, repugnant to the constitution . . be- 
come the law of the land"? After writing nearly 
nine thousand words, he now reached the command- 
ing question: Can the Supreme Court of the United 
States invalidate an act which Congress has passed 
and the President has approved? 

Marshall avowed that the Supreme Court can 
and must do that very thing, and in so doing made 
Marbury vs. Madison historic. In this, the vital 
part of his opinion, the Chief Justice is direct, clear, 
simple, and convincing. The people, he said, have 
an elemental right to establish such principles for 
"their future government, as . . shall most conduce 
to their own happiness." This was "the basis on 
which the whole American fabric had been erected." 
These " permanent" and "fundamental" principles, 
in the instance of the American Government, were 
those limiting the powers of the various depart- 
ments: "That those limits may not be mistaken, 
or forgotten, the constitution is written. To what 
purpose are powers limited . . if these limits may, 

1 1 Cranch, 176. This particular part of the text adopts Professor 
Edward S. Corwin's careful and accurate analysis of Marshall's opinion 
on this point. (See Corwin, 4-10.) 



MARBURY VERSUS MADISON 139 

at any time, be passed by those intended to be 
restrained?" * 

If Congress or any other department of the Gov- 
ernment can ignore the limitations of the Constitu- 
tion, all distinction between government of "lim- 
ited and unlimited powers" is done away with. To 
say that "acts prohibited and acts allowed are of 
equal obligation" is to deny the very purpose for 
which our fundamental law was adopted. "The 
constitution controls any legislative act repugnant 
to it." Congress cannot alter it by legislation. 2 All 
this, said Marshall, was too clear to admit of dis- 
cussion, but he proceeded, nevertheless, to discuss 
the subject at great length. 

There is "no middle ground." The Constitu- 
tion is either "a superior paramount law" not to 
be changed by legislative enactment, or else "it is 
on a level with the ordinary legislative acts" and, 
as such, "alterable" at the will of Congress. If 
the Constitution is supreme, then an act of Con- 
gress violative of it is not law; if the Constitution 
is not supreme, then "written constitutions are ab- 
surd attempts, on the part of the people, to limit 
a power in its own nature illimitable." Three times 
in a short space Marshall insists that, for Congress 
to ignore the limitations which the Constitution 
places upon it, is to deny the whole theory of gov- 
ernment under written constitutions. 

Although the contention that the Judiciary must 
consider unconstitutional legislation to be valid was 
"an absurdity too gross to be insisted on," Marshall 

x 1 Cranch, 176. 2 lb. 176-77. 



140 JOHN MARSHALL 

would, nevertheless, patiently examine it. 1 This he 
did by reasoning so simple and so logical that the 
dullest citizen could not fail to understand it nor the 
most astute intellect escape it. But in the process he 
was tiresomely repetitious, though not to so irritat- 
ing an extent as he at times became. 

If two laws conflict, the courts must decide be- 
tween them. Where the Constitution and an act 
of Congress apply to a case, "the court must de- 
termine which . . governs [it]. This is of the very 
essence of judicial duty. . . If, then, . . the constitu- 
tion is superior to any ordinary act of the legisla- 
ture," the Judiciary must prefer it to a mere statute. 
Otherwise "courts must close their eyes on the con- 
stitution," and see only the legislative enactment. 2 

But to do this "would subvert the very founda- 
tion of all written constitutions." It would be to 
"declare that an act which . . is entirely void, is 
yet . . completely obligatory," and that Congress 
may do "what is expressly forbidden." This would 
give to the legislature "a practical and real omnipo- 
tence, with the same breath which professes to re- 
strict their powers within narrow limits." It would 
be "prescribing limits, and declaring that those lim- 
its may be passed at pleasure." This "reduces to 
nothing" both the letter and the theory of the Con- 
stitution. 

That instrument expressly extends the judicial 
power to cases "arising under the constitution." 
Must the courts decide such a case "without exam- 
ining the instrument under which it arises?" If the 
1 1 Cranch, 177. 2 lb. 178. 



MARBURY VERSUS MADISON 141 

courts must look into the Constitution at all, as 
assuredly they must do in some cases, "what part 
of it are they forbidden to read or to obey?" 

Marshall cites hypothetical examples of legisla- 
tion in direct conflict with the fundamental law. 
Suppose that Congress should place an export duty 
on cotton, tobacco, flour, and that the Government 
should bring suit to recover the tax. "Ought judg- 
ment to be rendered in such a case?" Or if a bill of 
attainder should be passed and citizens prosecuted 
under it, "must the court condemn to death those 
victims whom the constitution endeavors to pre- 
serve?" 

Take, for example, the crime of treason : the Con- 
stitution emphatically prescribes that nobody can be 
convicted of this offense "unless on the testimony of 
two witnesses to the same overt act, or on confession 
in open court." The Judiciary particularly are ad- 
dressed — "it prescribes, directly for them, a rule of 
evidence not to be departed from." Suppose that 
Congress should enact a law providing that a citizen 
might be convicted of treason upon the testimony of 
one witness or by a confession out of court? Which 
must the court obey — the Constitution or the act 
altering that instrument? 

Did not these illustrations and many others that 
might be given prove that the Constitution must 
govern courts as well as Congress? If not, why does 
the Constitution require judges "to take an oath 
to support it"? That solemn obligation "applies in 
an especial manner to their conduct in their official 
character." How "immoral" to direct them to take 



142 JOHN MARSHALL 

this oath "if they were to be used as the instru- 
ments, and the knowing instruments, for violating 
what they swear to support!" Such contradictions 
and confusions would make the ceremony of taking 
the oath of judicial office "a solemn mockery" and 
even "a crime." 

There is, then, said Marshall, no escape from the 
conclusion "that a law repugnant to the constitu- 
tion is void," and that the judicial as well as other 
departments are bound by the Constitution. 1 The 
application of Marbury and others must therefore 
be dismissed. 

Thus, by a coup as bold in design and as daring 
in execution as that by which the Constitution had 
been framed, 2 John Marshall set up a landmark in 
American history so high that all the future could 
take bearings from it, so enduring that all the shocks 
the Nation was to endure could not overturn it. 
Such a decision was a great event in American his- 
tory. State courts, as well as National tribunals, 
thereafter fearlessly applied the principle that 
Marshall announced, and the supremacy of written 
constitutions over legislative acts was firmly estab- 
lished. 

This principle is wholly and exclusively American. 
It is America's original contribution to the science 
of law. 3 The assertion of it, under the conditions re- 
lated in this chapter, was the deed of a great man. 
One of narrower vision and smaller courage never 

1 1 Cranch, 178-80. 2 See vol. I, 323, of this work. 

3 It must be borne in mind that the American Constitution declares 
that, in and of itself, it is law — the supreme law of the land; and that 
no other written constitution makes any such assertion. 



MARBURY VERSUS MADISON 143 

would have done what Marshall did. In his manage- 
ment and decision of this case, at the time and under 
the circumstances, Marshall's acts and words were 
those of a statesman of the first rank. 

His opinion gave fresh strength to the purpose 
of the Republican leaders to subdue the Federalist 
Judiciary. It furnished Jefferson and his radical 
followers a new and concrete reason for ousting 
from the National Bench, and especially from the 
Supreme Court, all judges who would thus override 
the will of Congress. Against himself, in particular, 
Marshall had newly whetted the edge of Republican 
wrath, already over- keen. 

The trial of John Pickering, Judge of the United 
States Court for the District of New Hampshire, 
brought by the House before the bar of the Senate, 
was now pushed with cold venomousness to what 
Henry Adams calls "an infamous and certainly an 
illegal conviction"; and then Marshall's associate 
on the Supreme Bench, Justice Samuel Chase, was 
quickly impeached for high crimes and misdemean- 
ors. If the Republican organization could force from 
its partisans in the Senate a verdict of "guilty" in 
Chase's case also, Marshall's official head would be 
the next to fall. 1 

Concerning Marshall's assertion of the power of 
the National Judiciary to annul acts of Congress 
and to direct administrative officers in the discharge 
of their legal duties, Jefferson himself said nothing 
at the time. But the opinion of the Chief Justice 
was another ingredient thrown into the caldron of 

1 See infra, chap. IV. 



144 JOHN MARSHALL 

Jefferson's heart, where a hatred was brewed that 
poisoned the great politician to his latest day. 

Many months after the decision in the Marbury 
case, Jefferson first broke his silence. "Nothing in 
the Constitution has given them [the Supreme 
Court] a right to decide for the Executive, more than 
to the Executive to decide for them," he wrote. 
"The opinion which gives to the judges the right to 
decide what laws are constitutional, and what not, 
not only for themselves in their own sphere of 
action, but for the Legislature & Executive also, in 
their spheres, would make the judiciary a despotic 
branch." x 

Again, during the trial of Aaron Burr, 2 Jefferson 
denounced Marshall for his opinion in Marbury vs. 
Madison ; and toward the close of his life he returned 
again and again with corroding words to the subject 
regarding which, at the moment it arose, he con- 
cealed, so far as written words were concerned, his 
virulent resentment. For instance, seventeen years 
later Jefferson wrote that "to consider the judges 
as the ultimate arbiters of all constitutional ques- 
tions . . would place us under the despotism of an 
oligarchy," 3 

But for the time being, Jefferson was quiescent. 

1 Jefferson to Mrs. Adams, Sept. 11, 1804, Works: Ford, x, footnote 
to 89. 

2 See infra, chap. viii. 

3 Jefferson to Jarvis, Sept. 28, 1820, Works: Ford, xn, 162. Yet, at 
the time when he was founding the Republican Party, Jefferson had 
written to a friend that "the laws of the land, administered by upright 
judges, would protect you from any exercise of power unauthorized by 
the Constitution of the United States." (Jefferson to Rowan, Sept. 
26, 1798, ib. viii, 448.) 



MARBURY VERSUS MADISON 145 

His subtle mind knew how, in political controver- 
sies, to control his tongue and pen. It could do no 
good for him, personally, to make an outcry now; 
and it might do harm. The doctrine which Marshall 
announced had, Jefferson knew, a strong hold on all 
Federalists, and, indeed, on many Northern Repub- 
licans; the bar, especially, upheld it generally. 

The Presidential campaign was drawing near, and 
for the President openly to attack Marshall's posi- 
tion would create a political issue which could win 
none to the Republican cause not already fighting 
for it, and might keep recruits from joining the Re- 
publican colors. Jefferson was infinitely concerned 
about his reelection and was giving practical atten- 
tion to the strengthening of his party for the ap- 
proaching contest. 

"I am decidedly in favor of making all the banks 
Republican, by sharing deposits among them in pro- 
portion to the [political] dispositions they show," he 
wrote to his Secretary of the Treasury three months 
after Marshall's bold assertion of the dignity and 
power of the National courts. "It is," he contin- 
ued, "material to the safety of Republicanism to 
detach the mercantile interests from its enemies and 
incorporate them into the body of its friends." * 

Furthermore, Jefferson was, at that particular 
moment, profoundly troubled by intimate personal 

1 Jefferson to Gallatin, July 12, 1803, Works: Ford, x, 15-16. It 
should be remembered that most of the banks and the financial and 
commercial interests generally were determined opponents of Jeffer- 
son and Republicanism. As a sheer matter of "practical politics," the 
President cannot be fairly criticized for thus trying to weaken hia 
remorseless foes. 



146 JOHN MARSHALL 

matters and vast National complications. He had 
been trying, unsuccessfully, to adjust our dispute 
with France; the radical West was becoming clamor- 
ous for a forward and even a militant policy concern- 
ing the control of the Mississippi River, and espe- 
cially of New Orleans, which commanded the mouth 
of that commercial waterway; while the Federalists, 
insisting upon bold measures, had a fair prospect of 
winning from Jefferson's support those aggressive 
and predatory frontiersmen who, until now, had 
stanchly upheld the Republican standard. 

Spain had ceded Louisiana to France upon the 
condition that the territory never should be trans- 
ferred to any other government; but neither New 
Orleans nor any part of Louisiana had actually been 
surrendered by the Spanish authorities. Great 
Britain informed the American Government that 
she would not consent to the occupation by the 
French of any part of Spain's possessions on the 
American continent. 

Hating and distrusting the British, but also in 
terror of Napoleon, Jefferson, who was as weak in 
the conduct of foreign affairs as he was dexterous 
in the management of political parties, thought to 
escape the predicament by purchasing the island of 
Orleans and perhaps a strip on the east side of the 
Mississippi River. 1 

A series of events swiftly followed the decision of 
Marbury vs. Madison which enthralled the eager 
attention of the whole people and changed the des« 
tiny of the Republic. Three months after Marshall 

1 See Channing: U.S. iv, 313-14. 



MARBURY VERSUS MADISON 147 

delivered his opinion, Napoleon, yielding to "the 
empire of circumstances," as Talleyrand phrased it, 1 
offered, and Livingston and Monroe accepted, the 
whole of Louisiana for less than fifteen million dol- 
lars. Of course France had no title to sell — Louisi- 
ana was still legally owned and actually occupied 
by Spain. The United States bought nothing more 
than a pretension; and, by force of propinquity and 
power, made it a fact. 2 

The President was amazed when the news reached 
him. He did not want Louisiana 3 — nothing was 
further from his mind than the purchase of it. 4 The 
immorality of the acquisition affected him not at 
all; but the inconvenience did. He did not know 
what to do with Louisiana. Worse still, the treaty 
of cession required that the people living in that 
territory should be admitted into the Union, "ac- 
cording to the principles of the Federal Constitu- 
tion." 

So, to his infinite disgust, Jefferson was forced to 
deal with the Louisiana Purchase by methods as 
vigorous as any ever advocated by the abhorred 
Hamilton — methods more autocratic than those 
which, when done by others, he had savagely de- 
nounced as unconstitutional and destructive of lib- 
erty. 5 The President doubted whether, under the 
Constitution, we could acquire, and was sure that we 

1 Talleyrand to Decres, May 24, 1803, as quoted in Adams: U.S. 
n, 55. 

2 Morison: Otis, i, 262; see also Adams: U.S. n, 56. 

3 See instructions to Livingston and Monroe, Am. State Papers, For^ 
eign Relations, n, 540. 

* Adams: U.S. i, 442-43. 6 lb. n, 120-28. 



148 JOHN MARSHALL 

could not govern, Louisiana, and he actually pre- 
pared amendments authorizing the incorporation 
into the Republic of the purchased territory. 1 No 
such legal mistiness dimmed the eyes of John Mar- 
shall who, in time, was to announce as the decision 
of the Supreme Court that the Republic could ac- 
quire territory with as much right as any monar- 
chical government. 2 

To add to his perturbations, the high priest of 
popular rights found himself compelled to abandon 
his adored phrase, "the consent of the governed," 
upon which he had so carefully erected the structure 
of his popularity, and to drive through Congress a 
form of government over the people of Louisiana 
without consulting their wishes in the least. 3 

The Jeffersonian doctrine had been that the Union 
was merely a compact between sovereign States, and 
that new territory and alien peoples could not be 
added to it without the consent of all the partners. 
The Federalists now took their stand upon this 
indefensible ground, 4 and openly threatened the 
secession at which they had hinted when the Fed- 
eralist Judiciary Act was repealed. 

1 Works : Ford, x, 3-12. 

2 American Insurance Company et al. vs. Canter, 1 Peters, 511-46; 
and see vol. iv, chap, m, of this work. 

3 See U.S. Statutes at Large, n, 283; and Annals, 8th Cong. 2d 
Sess. 1597. 

4 For instance, Senator Plumer, two years later, thus stated the old 
Republican doctrine which the Federalists, in defiance of their party's 
creed and traditions, had now adopted as their own : " We cannot ad- 
mit a new partner into the Union, from without the original limits 
of the United States, without the consent, first obtained, of each of 
the partners composing the firm." (Plumer to Smith, Feb. 7, 1805, 
Plumer, 328.) 



MARBURY VERSUS MADISON 149 

Jefferson was alive to the danger: "Whatever 
Congress shall think it necessary to do [about Lou- 
isiana]," he cautioned one of the Republican House 
leaders, "should be done with as little debate as 
possible." l A month earlier he wrote: "The Con- 
stitution has made no provision for our holding for- 
eign territory, still less for incorporating foreign na- 
tions into our Union. The Executive . . have done 
an act beyond the Constitution." 2 

Therefore, he declared, "the less we say about 
constitutional difficulties respecting Louisiana the 
better. . . What is necessary for surmounting them 
must be done sub-silentio." 3 The great radical fa- 
vored publicity in affairs of state only when such a 
course was helpful to his political plans. On other 
occasions no autocrat was ever more secretive than 
Thomas Jefferson. 4 Seemingly, however, the Presi- 
dent was concerned only with his influence on the 
destiny of the world. 5 

At first the Federalist leaders were too dazed to do 
more than grumble. "The cession of Louisiana . . is 
like selling us a Ship after she is surrounded by a 

1 Jefferson to Nicholas, Sept. 7, 1803, Works: Ford, x, 10. 

2 Jefferson to Breckenridge, Aug. 12, 1803, ib. 7. 
8 Jefferson to Madison, Aug. 18, 1803, ib. 8. 

"The medicine for that State [North Carolina] must be very mild 
& secretly administered." (Jefferson to Nicholas, April 7, 1800, 
ib. rx, 129; and see Adams: U.S. in, 147.) 

B "The millenium was to usher in upon us as the irresistible conse- 
quence of the goodness of heart, integrity of mind, and correctness of 
disposition of Mr. Jefferson. All nations, even pirates and savages, 
were to be moved by the influence of his persuasive virtue and mas- 
terly skill in diplomacy." (Eaton's account of a call on President 
Jefferson, 1803, Life of the Late Gen. William Eaton: Prentiss, 263; 
also quoted in Adams: U.S. u, 431.) 



150 JOHN MARSHALL 

British Fleet," shrewdly observed George Cabot, 
when the news was published in Boston. 1 Fisher 
Ames, of course, thought that "the acquiring of 
territory by money is mean and despicable," es- 
pecially when done by Republicans. "The less of it 
[territory] the better. . . By adding an unmeasured 
world beyond that river [Mississippi], we rush like 
a comet into infinite space." 2 

Soon, however, their dissatisfaction blew into 
flame the embers of secession which never had be- 
come cold in their bosoms. "I am convinced," 
wrote Uriah Tracy, "that the accession of Louisiana 
will accelerate a division of these States; whose 
whenabouts is uncertain, but somewhen is inevita- 
ble." 3 Senator Plumer thought that the Eastern 
States should form a new nation: "Adopt this west- 
ern world into the Union," he said, "and you destroy 
at once the weight and importance of the East- 
ern States, and compel them to establish a separate 
and independent empire." 4 A few days' reflection 
brought Ames to the conclusion that "our country 
is too big for union, too sordid for patriotism, too 
democratic for liberty." 5 Tapping Reeve of Con- 
necticut made careful inquiry among the Federal- 
ists in his vicinity and informed Tracy that "all . . 

1 Cabot to King, July 1, 1803, King, iv, 279. The Louisiana Pur- 
chase was first publicly announced through the press by the Inde- 
pendent Chronicle of Boston, June 30, 1803. (Adams: U.S. n, 82- 
83.) 

2 Ames to Gore, Oct. 3, 1803, Ames, I, 323-24. 

3 Tracy to McHenry, Oct. 19, 1803, Steiner: Life and Correspond- 
ence of James McHenry, 522. 

* Oct. 20, 1803, Plumer, 285. 

* *mes to Dwight, Oct. 26, 1803, Ames i, 328. 



MARBURY VERSUS MADISON 151 

believe that we must separate, and that this is the 
most favorable moment." l 

Louisiana, however, was not the only motive of 
the foremost New England Federalists for their 
scheme of breaking up the Republic. As we have 
seen, the threat of secession was repeatedly made 
during the Republican assault on the Judiciary; and 
now, as a fundamental cause for disunion, the 
Northern Federalists speedily harked back to Jeffer- 
son's purpose of subverting the National courts. 
The Republicans were ruling the Nation, Virginia 
was ruling the Republicans, Jefferson was ruling 
all. Louisiana would permanently turn the balance 
against the Northern and Eastern States, already 
outweighed in the National scales; and the conquest 
of the National Judiciary would remove from that 
section its last protection against the pillaging hands 
of the Huns and Vandals of Republicanism. So rea- 
soned the Federalists. 

What could be done to save the rights and the 
property of "the wise, the rich and the good"? By 
what pathway could the chosen escape their doom? 
"The principles of our Revolution point to the rem- 
edy," declared the soured and flint-hearted Picker- 
ing. "The independence of the judges is now di- 
rectly assailed. . . I am not willing to be sacrificed 
by such popular tyrants. . . I do not believe in the 
practicability of a long-continued union." 2 

1 Reeve to Tracy, Feb. 7, 1804, N.E. Federalism: Adams, 342; and 
see Adams: U.S. n, 160. 

Members of Congress among the Federalists and Republicans be- 
came so estranged that they boarded in different houses and refused 
to associate with one another. (Plumer, 245, 336.) 

3 Pickering to Cabot, Jan. 29, 1804, Lodge: Cabot, 338. 



152 JOHN MARSHALL 

For the same reasons, Roger Griswold of Con- 
necticut avowed that "there can be no safety to the 
Northern States without a separation from the con- 
federacy." l The Reverend Jedediah Morse of New 
Hampshire wrote Senator Plumer that "our empire 
. . must . . break in pieces. Some think the sooner 
the better." 2 And the New Hampshire Senator re- 
plied: "I hope the time is not far distant when . . 
the sound part will separate from the corrupt." 3 

With the exception of John Adams, only one emi- 
nent New England Federalist kept his head steady 
and his patriotism undefiled: George Cabot, while 
sympathizing with his ancient party friends, frankly 
opposed their mad project. Holding that secession 
was impracticable, he declared: "I am not satisfied 
that the thing itself is to be desired. My habitual 
opinions have been always strongly against it." 4 

But the expressions of such men as Pickering, 
Ames, and Griswold indicated the current of New 
England Federalist thought and comment. Their 
secession sentiment, however, did not appeal to the 
young men, who hailed with joy the opportunity to 
occupy these new, strange lands which accident, 
or Providence, or Jefferson had opened to them. 
Knowledge of this was indeed one cause of the anger 
of some Federalist managers who owned immense 
tracts in New England and in the Ohio Valley and 
wanted them purchased and settled by those now 

1 Griswold to Wolcott, March 11, 1804, N.E. Federalism: Adams, 
356. 

2 Morse to Plumer, Feb. 3, 1804, Plumer, 289. 

3 Plumer to Morse, March 10, 1804, ib. 

4 Cabot to King, March 17, 1804, Lodge: Cabot, 345. 



MARBURY VERSUS MADISON 153 

turning their eyes to the alluring farther western 
country. 1 They saw with something like fury the 
shifting of political power to the South and West. 

The management of the unwelcome Louisiana 
windfall, the conduct of the National campaign, the 
alarming reports from New England, left Jefferson 
no time to rail at Marshall or to attack that "subtle 
corps of sappers and miners" who were then begin- 
ning "to undermine . . our confederated fabric," as 
Jefferson declared seventeen years later. 2 For the 
present the great public duty of exposing Marshall's 
decision in Marbury vs. Madison must be deferred. 

But the mills of democracy were grinding, and 
after he was reelected certain impeachments would 
be found in the grist that would make all right. 
The defiant Marshall would at least be humbled, 
perhaps — probably — removed from office. But all 
in good time! For the present Jefferson had other 
work to do. He himself must now exercise powers 
which, according to his philosophy and declarations, 
were far beyond those conferred upon him by the 
Constitution. 

So it came about that the first of Marshall's great 
Constitutional opinions received scant notice at the 
time of its delivery. The newspapers had little to 
say about it. Even the bench and the bar of the 
country, at least in the sections remote from Wash- 
ington, appear not to have heard of it, 3 or, if they 

1 See Morison: Otis, I, 262. 

2 Jefferson to Ritchie, Dec. 25, 1820, Works: Ford, xii, 177. 

3 For instance, in 1808, the United States District Court of Massa- 
chusetts, in the decision of a case requiring all possible precedents like 
that of Marbury vs. Madison, did not so much as refer to Marshall's 



154 JOHN MARSHALL 

had, to have forgotten it amid the thrilling events 
that filled the times. 

Because popular interest had veered toward and 
was concentrated upon the Louisiana Purchase and 
the renewal of war in Europe, Republican news- 
papers, until then so alert to discover and eager 
to attack every judicial "usurpation," had almost 
nothing to say of Marshall's daring assertion of ju- 
dicial supremacy which later was execrated as the 
very parent of Constitutional evil. An empire had 
been won under Jefferson; therefore Jefferson had 
won it — another proof of the far-seeing statesman- 
ship of "The Man of the People." Of consequence 

opinion, although every other case that could be found was cited. 
Marbury vs. Madison, long afterwards, was added in a footnote to the 
printed report. (McLaughlin, 30, citing Am. Law Journal, old series, 
II, 255-64.) 

Marshall's opinion in Marbury vs. Madison was first referred to by 
counsel in a legal controversy in Ex Parte Burford, 1806 (3 Cranch, 
448). Robert Goodloe Harper next cited it in his argument for Boll- 
mann (4 Cranch, 86; and see infra, chap. vn). Marshall referred to it 
in his opinion in that case, and Justice William Johnson commented 
upon it at some length. 

A year later Marshall's opinion in Marbury vs. Madison was cited 
by Jefferson's Attorney-General, Csesar A. Rodney. In the case Ex 
Parte Gilchrist et al. vs. The Collector of the Port of Charleston, S.C. 
(5 Hughes, 1), the United States Court for that circuit, consisting of 
Johnson, Associate Justice of the Supreme Court, and the Judge of the 
District Court, granted a mandamus under the section of the Judiciary 
Act which Marshall and the entire court had, five years before, de- 
clared to be unconstitutional, so far as it conferred original jurisdic- 
tion upon the Supreme Court in applications for mandamus. 

Rodney wrote to the President a letter of earnest protest, pointing out 
the fact that the court's action in the Gilchrist case was in direct an- 
tagonism to the opinion in Marbury vs. Madison. But Jefferson was 
then so savagely attacking Marshall's rulings in the Burr trial (see 
infra, chaps, vn, vin, rx) that he was, at last, giving public expression of 
his disapproval of the opinion of the Chief Justice in Marbury vs. 
Madison. He did not even answer Rodney's letter. 



MARBURY VERSUS MADISON 155 

he must be reelected. Such was the popular logic; 
and reelected Jefferson was — triumphantly, almost 
unanimously. 

Circumstances which had shackled his hands now 
suddenly freed them. Henceforth the President 
could do as he liked, both personally and politically. 
No longer should John Marshall, the abominated 
head of the National Judiciary, rest easy on the 
bench which his audacity had elevated above Presi- 
dent and Congress. The opinion of the "usurping" 
Chief Justice in Marbury vs. Madison should have 
answer at last. So on with the impeachment trial 
of Samuel Chase ! Let him be deposed, and then, if 
Marshall would not bend the knee, that obdurate 
judicial defender of Nationalism should follow Chase 
into desuetude and disgrace. 

The incessant clamor of the Federalist past-states- 
men, unheard by the popular ear, had neverthe- 
less done some good — all the good it ought to have 
done. It had aroused misgivings in the minds of 
certain Northern Republican Senators as to the ex- 
pediency, wisdom, and justice of the Republican 
plan to shackle or overthrow the National Judiciary. 
This hesitation was, however, unknown to the mas- 
ters of the Republican organization in Congress. 
The Federalists themselves were totally unaware of 
it. Only Jefferson, with his abnormal sensibility, 
had an indistinct impression that somewhere, in 
the apparently perfect alignment of the Republican 
forces, there was potential weakness. 

Marshall was gifted with no such divination. He 
knew only the fate that had been prepared for him. 



156 JOHN MARSHALL 

A crisis was reached in his career and a determina- 
tive phase of American history entered upon. His 
place as Chief Justice was to be made secure and 
the stability of American institutions saved by as 
narrow a margin as that by which the National 
Constitution had been established. 



CHAPTER IV 

IMPEACHMENT 

The judges of the Supreme Court must fall. Our affairs approach an im- 
portant crisis. (William Plumer.) 

These articles contained in themselves a virtual impeachment of not only 
Mr. Chase but of all the Judges of the Supreme Court. 

(John Quincy Adams.) 

We shall bring forward such a specimen of judicial tyranny, as, I trust in 
God, will never be again exhibited in our country. (John Randolph.) 
We appear for an ancient and infirm man whose better days have been worn 
out in the service of that country which now degrades him. 

(Joseph Hopkinson.) 

Our property, our liberty, our lives can only be protected by independent 
judges. (Luther Martin.) 

"We want your offices, for the purpose of giving 
them to men who will fill them better." In these 
frank words, Senator William Branch Giles * of 
Virginia stated one of the purposes of the Repub- 
licans in their determined attack on the National 
Judiciary. He was speaking to the recently elected 
young Federalist Senator from Massachusetts, John 
Quincy Adams. 2 

They were sitting before the blazing logs in the 
wide fireplace that warmed the Senate Chamber. 
John Randolph, the Republican leader of the House, 
and Israel Smith, a Republican Senator from Ver- 
mont, were also in the group. The talk was of the 

1 Giles was appointed Senator August 11, 1804, by the Governor 
to fill the unexpired term of Abraham Venable who resigned in order 
that Giles might be sent to the Senate. In December the Legislature 
elected him for the full term. Upcn taking his seat Giles immediately 
became the Republican leader of the Senate. (See Anderson, 93,) 

1 Dec. 21, 1804, Memoirs, J. Q. A.: Adams, i, 322-23. 



158 JOHN MARSHALL 

approaching trial of Samuel Chase, Associate Jus- 
tice of the Supreme Court of the United States, 
whom the House had impeached for high crimes and 
misdemeanors. Giles and Randolph were, "with ex- 
cessive earnestness," trying to convince the doubt- 
ing Vermont Senator of the wisdom and justice of 
the Republican method of ousting from the National 
Bench those judges who did not agree with the views 
of the Republican Party. 

Giles scorned the idea of " an independent ju- 
diciary!" The independence claimed by the Na- 
tional judges was "nothing more nor less than an 
attempt to establish an aristocratic despotism in 
themselves." The power of the House to impeach, 
and of the Senate to try, any public officer was 
unlimited. 

"If," continued Giles, "the Judges of the Supreme 
Court should dare, as they had done, to declare acts of 
Congress unconstitutional, or to send a mandamus 
to the Secretary of State, as they had done, it was the 
undoubted right of the House to impeach them, and 
of the Senate to remove them for giving such opin- 
ions, however honest or sincere they may have been 
in entertaining them." He held that the Senate, 
when trying an impeached officer, did not act as a 
court. "Removal by impeachment was nothing 
more than a declaration by Congress to this effect: 
You hold dangerous opinions, and if you are suffered 
to carry them into effect you will work the destruc- 
tion of the Nation." l 

Thus Giles made plain the Republican objective. 

1 Dec. 21, 1804. Memoirs, J. Q. A.: Adams I, 322-23. 



IMPEACHMENT 159 

Judges were to be removed for any cause that a 
dominant political party considered to be sufficient. l 
The National Judiciary was, in this manner, to be 
made responsive to the popular will and responsible 
to the representatives of the people in the House 
and of the States in the Senate. 2 

Giles, who was now Jefferson's personal repre- 
sentative in the Senate, 3 as he had been in the 
House, bore down upon his mild but reluctant 
fellow partisan from Vermont in a "manner dog- 
matical and peremptory." Not only must the ag- 
gressive and irritating Chase be stripped of his 
robes, but the same fate must fall upon "all other 
Judges of the Supreme Court except the one last 
appointed," 4 who, being a Republican, was se- 
cure. 5 Adams rightly concluded that the plan was 

1 Plumer, 274-75; and see especially Plumer, Jan. 5, 1804, "Con- 
gress," Plumer MSS. Lib. Cong. 

2 The powerful Republican organ, the Aurora, of Philadelphia, 
thus indicted the National Judiciary: Because judges could not be 
removed, " many wrongs are daily done by the courts to humble, 
obscure, or poor suitors. . . It is a prodigeous monster in a free govern- 
ment to see a class of men set apart, not simply to administer the laws, 
but who exercise a legislative and even an executive power, directly 
in defiance and contempt of the Constitution." (Aurora, Jan. 28, 
1805, as quoted in Corwin, 41.) Professor Corwin says that this 
utterance was approved by Jefferson. 

3 " Mr. Giles from Virginia . . is the Ministerial leader in the Sen- 
ate." (Plumer to Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.) 

" I considered M r - Giles as the ablest practical politician of the whole 
party enlisted under M r - Jefferson's banners." (Pickering to Mar- 
shall, Jan. 24, 1826, Pickering MSS. Mass. Hist. Soc.) 

4 William Johnson of South Carolina, appointed March 26, 1804, 
vice William Moore, resigned. Johnson was a stanch Jeffersonian 
when appointed. He was thirty-three years old at the time he was 
made Associate Justice. 

6 It is impossible to put too much emphasis on Giles's avowal. 
His statement is the key to the Chase impeachment. 



160 JOHN MARSHALL 

to "have swept the supreme judicial bench clean 
at a stroke." * 

For a long time everybody had understood that 
the impeachment of Chase was only the first step 
in the execution of the Republican plan to replace 
with Republicans Marshall and the four Federalist 
Associate Justices. "The judges of the Supreme 
Court are all Federalists," wrote Pickering six 
weeks before Johnson's appointment. "They stand 
in the way of the ruling power. . . The Judges there- 
fore, are, if possible, to be removed," by impeach- 
ment. 2 

Nearly two years before, Senator William Plumer 
of New Hampshire had accurately divined the Re- 
publican plan: "The judges of the Supreme Court 
must fall," he informed Jeremiah Mason. "They 
are denounced by the Executive, as well as the 
House. They must be removed; they are obnoxious 
unyielding men; & why should they remain to awe 
& embarrass the administration? Men of more 
flexible nerves can be found to succeed them. Our 
affairs seem to approach an important crisis." 3 
The Federalists rightly believed that Jefferson was 
the directing mind in planning and effecting the 
subjugation of the National Judiciary. That, said 
Bayard, "has been an object on which Mr. Jefferson 
has long been resolved, at least ever since he has 
been in office." 4 

1 Adams to his father, March 8, 1805, Writings, J. Q. A.: Ford, 
in, 108. 

2 Pickering to Lyman, Feb. 11, 1804, N.E. Federalism: Adams, 
344; Lodge: Cabot, 444; also see Plumer, 275. 

3 Plumer to Mason, Jan. 14, 1803, Plumer MSS. Lib. Cong. 

4 Bayard to Bassett, Feb. 12, 1802, Baijard Papers: Donnan, 148. 




jf^a^t^t-^,^ j^z k^Cjx^ 




^ 



IMPEACHMENT 161 

John Marshall especially must be overthrown. 1 
He had done all the things of which Giles and the 
Republicans complained. He had "dared to declare 
an act of Congress unconstitutional," had "dared" 
to order Madison to show cause why he should not 
be compelled to do his legal duty. Everybody was 
at last awake to the fact that Marshall had become 
the controlling spirit of the Supreme Court and of 
the whole National Judiciary. 

Every one knew, too, that he was the most deter- 
mined Nationalist in the entire country, and that 
Jefferson and the Republican Party had no more 
unyielding enemy than the Chief Justice. And he 
had shown by his management of the Supreme 
Court and by his opinion in Marbury vs. Madison, 
how powerful that tribunal could be made. The 
downfall of Samuel Chase was a matter of small 
importance compared with the removal of John 
Marshall. 

"They hate Marshall, Paterson, etc. worse than 
they hate Chase because they are men of better 
character," asserted Judge Jeremiah Smith of New 
Hampshire. "To be safe in these times good men 
must not only resign their offices but they must 
resign their good names. . . They will be obnoxious 
as long as they retain either. If they will neither die 
nor resign they give Mr J the trouble of correcting 
the procedure. . . Tell me what the judges say — 
are they frightened?" he anxiously inquired of 
Plumer. 2 Frightened they were — and very badly 

1 Channing: Jeffersonian System, 119-20; Adams: U.S. n, 225-27, 
235; Anderson, 93, 95. 

2 Smith to Plumer, Feb. 11, 1804, Plumer MSS. Lib. Cong. 



162 JOHN MARSHALL 

frightened. Even John Marshall, hitherto imper- 
turbable and dauntless, was shaken. 1 

In addition to his "heretical" opinion in Marbury 
vs. Madison, Marshall had given the Republicans, 
and Jefferson especially, another cause for com- 
plaint. A year after the decision of that case, he had 
again gone out of his way to announce from the 
Supreme Bench the fallacy of Jefferson's Constitu- 
tional views and the soundness of the Nationalist 
theory. During the February term of the Supreme 
Court for the year 1804, that tribunal, in the case 
of the United States vs. Fisher, 2 was called upon to 
decide whether the United States was a preferred 
creditor of an insolvent, under the Bankruptcy Act 
of 1800, which Marshall had helped to draw. 3 
Among other objections, it was suggested by counsel 
for Fisher, the insolvent, that the Bankruptcy Law 
was unconstitutional and that the priority which 
that act gave the Nation over other creditors of 
the bankrupt would prevent the States from mak- 
ing similar laws for their own protection. 

But, said Marshall, this is "the necessary conse- 
quence of the supremacy of the laws of the United 
States on all subjects to which the legislative power 
of the United States extends. . . The Constitution 
did not prohibit Congress" from enacting a bank- 
ruptcy law and giving the Nation preference as a 
creditor. On the contrary, Congress was expressly 
authorized "to make all laws which shall be neces- 
sary and proper to carry into execution the powers 

1 See infra, 176-77, 196. 2 2 Cranch, 358-405. 

3 See vol. ii, 481-82, of this work. 



IMPEACHMENT 163 

vested by the Constitution in the National Govern- 
ment." To say that "no law was authorized which 
was not indispensably necessary . . would produce 
endless difficulties. . . Congress must possess the 
choice of means and must be empowered to use 
any means which are, in fact, conducive to the ex- 
ercise of a power granted by the Constitution." 

This was an emphatic denial of Jefferson's famous 
opinion on the power of Congress to charter a bank, 
and an outright assertion of the views of Hamilton 
on that celebrated question. 1 The case could have 
been decided without such an expression from the 
court, but it presented an opportunity for a judicial 
statement of liberal construction which might not 
soon come again, 2 and Marshall availed himself of it. 

For two years no part of the Republican plans 
against the Judiciary had miscarried. Close upon 
the very day when John Breckenridge in the Senate 
had moved to repeal the National Judiciary Act of 
1801, a petition signed by the enraged Republicans 
of Alleghany County, Pennsylvania, had been sent 
to the Legislature of that State, demanding the im- 
peachment of Alexander Addison; and almost simul- 
taneously with the passage of the Judiciary Repeal 
Act of Congress, the Pennsylvania House of Repre- 
sentatives transmitted to the State Senate articles 
charging the able but arrogant Federalist judge with 
high crimes and misdemeanors. 

1 See vol. n, 71-74, of this work. 

2 Fifteen years passed before a critical occasion called for another 
assertion by Marshall of the doctrine of implied powers; and that 
occasion produced one of Marshall's greatest opinions — in the judg- 
ment of many, the greatest of all his writings. (See McCulloch vs. 
Maryland, vol. iv, chap, vi, of this work.) 



164 JOHN MARSHALL 

Addison's trial speedily followed; and while the 
evidence against him, viewed through the perspec- 
tive of history, seems trivial, the Republican Penn- 
sylvania Senate pronounced judgment against him 
and deposed him from the bench. With notable 
ability, Addison conducted his own defense. He made 
a powerful speech which is a classic of conservative 
philosophy. 1 But his argument was unavailing. The 
Republican theory, that a judge might be deposed 
from office for any conduct or opinion of which the 
Legislature disapproved, was ruthlessly carried out. 2 

Almost as soon as Congress convened after the 
overthrow of the obnoxious Pennsylvania Federal' 
ist judge, the Republicans in the National House, 
upon representations from Jefferson, took steps to 
impeach John Pickering, Judge of the United States 
Court for the District of New Hampshire. 3 This 

1 Addison's address is historically important; it perfectly shows the 
distrust of democracy which all Federalist leaders then felt. Among 
other things, he pleaded for the independence of the Judiciary, as- 
serted that it was their exclusive province to decide upon the con- 
stitutionality of laws, and stoutly maintained that no judge could be 
impeached except for an offense for which he also could be indicted. 
(Addison Trial, 101-43.) 

2 The petition praying for the impeachment of Addison was sent 
to the Pennsylvania House of Representatives on January 11, 1802. 
On March 23, 1802, that body transmitted articles of impeachment 
to the State Senate. The trial was held in early January, 1803. Addi- 
son was convicted January 26, 1803. (lb.) 

3 Jefferson's Message was transmitted to the House, February 4, 
1803, nine days after the conviction of Addison. It enclosed a "letter 
and affidavits " setting forth Pickering's conduct on the bench in the 
case of the ship Eliza, and suggested that "the Constitution has con- 
fided [to the House] a power of instituting proceedings of redress." 
(Annals, 7th Cong. 2d Sess. 460.) 

On March 2 the committee reported a resolution for Pickering's 
impeachment because of the commission by him of "high crimes and 
misdemeanors," and, though a few Federalists tried to postpone a 
vote, the resolution was adopted immediately. 



IMPEACHMENT 165 

judge had been hopelessly insane for at least three 
years and, as one result of his mental and nervous 
malady, had become an incurable drunkard. 1 In 
this condition he had refused to hear witnesses for 
the Government in the case of the ship Eliza, 
seized for violation of the revenue laws. He per- 
emptorily ordered the vessel returned to its captain, 
and finally declined to allow an appeal from his 
decree. All this had been done with ravings, curs- 
ings, and crazed incoherences. 2 

That he was wholly incapacitated for office and 
unable to perform any act requiring intelligence was 
conceded by all. But the Constitution provided no 
method of removing an officer who had become 
insane. 3 This defect, however, gave the Republicans 
an ideal opportunity to put into practice their 
theory that impeachment was unrestricted and 
might be applied to any officer whom, for any reason, 
two thirds of the Senate deemed undesirable. "If 
the facts of his denying an appeal & of his intoxi- 
cation, as stated in the impeachment, are proven, 
that will be sufficient cause for removal without fur- 
ther enquiry," asserted Jefferson when assured that 
Pickering was insane, and when asked "whether 

1 Depositions of Samuel Tenney, Ammi R. Cutter, Joshua Brackett, 
Edward St. Loe Livermore. (Annals, 8th Cong. 1st Sess. 334-42.) 

2 Testimony of John S. Sherburne, Thomas Chadbourne, and 
Jonathan Steele. (lb. 351-56.) 

3 The wise and comprehensive Federalist Judiciary Act of 1801 
covered just such cases. It provided that when a National judge was 
unable to discharge the duties of his office, the circuit judges should 
name one of their members to fill his place. (See Annals, 6th Cong. 
2d Sess. 1545.) This very thing had been done in the case of Judge 
Pickering (see McMaster: U.S. in, 166). It is curious that, in the 
debate, the Republicans did not denounce this as unconstitutional. 



166 JOHN MARSHALL 

insanity was good cause for impeachment & removal 
from office." l 

The demented judge did not, of course, appear at 
his trial. Instead, a petition by his son was pre- 
sented, alleging the madness of his father, and pray- 
ing that evidence to that effect be received by the 
Senate. 2 This plea was stoutly resisted, and for two 
days the question was debated. "The most perse- 
vering and determined opposition is made against 
having evidence and counsel to prove the man in- 
sane," records John Quincy Adams, "only from the 
fear, that if insanity should be proved, he cannot 
be convicted of high crimes and misdemeanors by 
acts of decisive madness." 3 Finally the determined 
Republicans proceeded to the trial of the insane 
judge for high crimes and misdemeanors, evidence 
of his dethroned reason to be received "in mitiga- 
tion." 4 In immense disgust the House managers 
withdrew, because "the Senate had determined to 
hear evidence" that the accused person was insane. 
Before they returned, they publicly denounced the 
Senators for their leniency; and thus Republican 
discipline was restored. 5 

Jefferson was impatient. "It will take two years 
to try this impeachment," he complained to Senator 
Plumer. "The Constitution ought to be altered," 

1 Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong. 

2 Annals, 8th Cong. 1st Sess. 328-30. 

3 Memoirs, J. Q. A.: Adams, i, 299-300. 

4 "This," records Adams, "had evidently been settled . . out of 
court. And this is the way in which these men administer justice." (76.) 

6 "In the House . . speeches are making every day to dictate to 
the Senate how they are to proceed; and the next morning they pro- 
ceed accordingly." (lb. 301-02.) 



IMPEACHMENT 167 

he continued, "so that the President should be 
authorized to remove a Judge from office, on the 
address of the two Houses." * But the exasperated 
Republicans hastened the proceedings; and the trial 
did not consume two weeks all told. 

If an insane man should be condemned, "it will 
not hereafter be necessary," declared Senator Sam- 
uel Smith of Maryland, "that a man should be 
guilty of high crimes and misdemeanors," the com- 
mission of which was the only Constitutional ground 
for impeachment. Senator Jonathan Dayton of New 
Jersey denounced the whole proceeding as "a mere 
mockery of a trial." 2 Senator John Quincy Adams, 
in the flurry of debate, asserted that he should 
"speak until [his] mouth was stopped by force." 3 
Senator Nicholas of Virginia shouted "Order! 
order! order!" when Samuel White of Delaware was 
speaking. So furious became the altercation that a 
duel seemed possible. 4 No delay was permitted and, 
on March 12, 1804, the demented Pickering was, 
by a strictly partisan vote of 19 to 7, 5 adjudged 
guilty of high crimes and misdemeanors. 

An incident happened which was prophetic of a 

1 Feb. 18, 1803, Plumer, 253. 

2 Annak, 8th Cong. 1st Sess. 365. 

3 See Memoirs, J. Q. A.; Adams, i, 302-04, for a vivid account of 
the whole incident. 

4 Plumer, March 10, 1804, "Congress," Plumer MSS. Lib. Cong. 

6 Annals, 8th Cong. 1st Sess. 367. "The independence of our judi- 
ciary is no more. . . I hope the time is not far distant when the people 
east of the North river will manage their own affairs in their own way; 
. . and that the sound part will separate from the corrupt." (Plumer 
to Morse, March 10, 1804, Plumer MSS. Lib. Cong.) On the uncon- 
stitutional and revolutionary conduct of the Republicans in the Pick- 
ering impeachment trial see Adams : U.S. II, 158. 



168 JOHN MARSHALL 

decline in the marvelous party discipline that had 
kept the Republicans in Senate and House in solid 
support of the plans of the leaders. Three Repub- 
lican Senators left the Chamber in order to avoid 
the balloting. 1 They would not adjudge an insane 
man to be guilty of high crimes and misdemeanors, 
but they were not yet independent enough to vote 
against their party. 2 This, however, did not alarm 
the Republican managers. They instantly struck 

1 Senators John Armstrong of New York, Stephen R. Bradley of 
Vermont, and David Stone of North Carolina. Jonathan Dayton of 
New Jersey and Samuel White of Delaware, Federalists, also with- 
drew. {Annals, 8th Cong. 1st Sess. 366.) And see Memoirs, J. Q. A. : 
Adams, i, 308-09; J. Q. Adams to his father, March 8, 1805, Writings, 
J. Q. A. : Ford, in, 110; Plumer to Park, March 13, 1804, Plumer MSS. 
Lib. Cong. 

Senator John Brown of Kentucky, a Republican, "could not be in- 
duced to join the majority, but, unwilling to offend them, he obtained 
& has taken a leave of absence." (Plumer to Morse, March 10, 1804, 
Plumer MSS. Lib. Cong.) Senator Brown had been elected President 
pro tern, of the Senate, January 23, 1804. 

Burr "abruptly left the Senate" to attend to his candidacy for the 
governorship of New York. (Plumer, March 10, 1804, "Congress," 
Plumer MSS. Lib. Cong.) Senator Franklin of North Carolina was 
then chosen President pro tern, and presided during the trial of Picker- 
ing. But Burr returned in time to arrange for, and preside over, the 
trial of Justice Chase. 

2 The Republicans even refused to allow the report of the proceed- 
ings to be "printed in the Appendix to the Journals of the Session." 
(Memoirs, J. Q. A.: Adams, i, 311.) 

The conviction and removal of Pickering alarmed the older Feder- 
alists almost as much as did the repeal of the Judiciary Act. "The 
demon of party governed the decision. All who condemned were 
Jeffersonians, and all who pronounced the accused not guilty were 
Federalists." (Pickering to Lyman, March 4, 1804, N.E. Federalism : 
Adams, 358-59; Lodge: Cabot, 450.) 

"I really wish those in New England who are boasting of the in- 
dependence of our Judiciary would reflect on what a slender tenure 
Judges hold their offices whose political sentiments are at variance 
with the dominant party." (Plumer to Park, March 13, 1804, Plumer 
MSS. Lib. Cong.) 



IMPEACHMENT 169 

the next blow upon which they had determined 
more than two years before. Within an hour after 
John Pickering was convicted the House voted to 
impeach Samuel Chase. 

Marshall's irascible associate on the Supreme 
Bench had given the Republicans a new and serious 
cause for hostilities against him. In less than two 
months after Marshall had delivered the unanimous 
opinion of the Supreme Court in Marbury vs. Madi- 
son, Justice Chase, in charging the grand jury at 
Baltimore, denounced Republican principles and 
mercilessly assailed Republican acts and purposes. 

This judicial critic of democracy told the grand 
jury that ""the bulk of mankind are governed by their 
passions, and not by reason. . . The late alteration of 
the federal judiciary . . and the recent change in our 
state constitution, by the establishing of universal 
suffrage, . . will . . take away all security for prop- 
erty and personal liberty . . and our republican 
constitution will sink into a mobocracy, the worst 
of all popular governments." 

Chase condemned "the modern doctrines by our 
late reformers, that all men, in a state of society, 
are entitled to enjoy equal liberty and equal rights, 
[which] have brought this mighty mischief upon us"; 
— a mischief which he feared "will rapidly progress, 
until peace and order, freedom and property, shall 
be destroyed. . . Will justice be impartially admin- 
istered by judges dependent on the legislature for 
their . . suport? Will liberty or property be pro- 
tected or secured, by laws made by representatives 
chosen by electors, who have no property in, or a 



170 JOHN MARSHALL 

common interest with, or attachment to, the com- 
munity?" x 

Burning with anger, a young Republican mem- 
ber of the Maryland Legislature, John Montgomery, 
who had listened to this judicial tirade, forthwith 
savagely denounced Chase in the Baltimore Ameri- 
can. 2 He demanded that the Justice be impeached 
and removed from the bench. 3 Montgomery has- 
tened to send to the President 4 a copy of the paper. 

Jefferson promptly wrote Nicholson: "Ought this 
seditious and official attack on the principles of our 
Constitution, and on the proceedings of a State, 
go unpunished? And, to whom so pointedly as 
yourself will the public look for the necessary meas- 
ures?" 

But Jefferson was not willing to appear openly. 
With that uncanny power of divining political cur- 
rents to which coarser or simpler minds were obliv- 
ious, he was conscious of the uneasiness of Northern 
Republicans over ruthless impeachment and decided 
not to become personally responsible. "For myself," 
he cautioned Nicholson, "it is better that I should 
not interfere." 5 

Upon the advice of Nathaniel Macon, 6 Republican 
Speaker of the House, Nicholson concluded that it 

1 Exhibit vni, Chase Trial, Appendix, 61-62; also see Annals, 8th 
Cong. 2d Sess. 675-76. 

2 June 13, 1803. 3 See Chase Trial, 101 et seq. 

4 See McMaster: U.S. in, 162-70. 

5 Jefferson to Nicholson, May 13, 1803, Jefferson Writings: Wash- 
ington, iv, 484. 

6 Macon to Nicholson, Aug. 6, 1803, Dodd: Life of Nathaniel Ma- 
con, 187-88. Macon seriously doubted the expediency and legality of 
the impeachment of Chase. However, he voted with his party. 



IMPEACHMENT 171 

would be more prudent for another to take the lead. 
It was well understood that he was to have Chase's 
place on the Supreme Bench, 1 and this fact would 
put him at a disadvantage if he became the central 
figure in the fight against the aged Justice. The pro- 
curement of the impeachment was, therefore, placed 
in the eager hands of John Randolph, that "unusual 
Phenomenon," as John Adams called him, 2 whose 
lust for conspicuous leadership was insatiable. 

The Republican managers had carefully moulded 
public opinion into the belief that Chase was guilty 
of some monstrous crime. Months before articles 
of impeachment were presented to the House, ex 
parte statements against him were collected, pub- 
lished in pamphlet form, and scattered through- 
out the country. To assure wider publicity all this 
"evidence" was printed in the Republican organ 
at Washington. The accused Justice had, there- 
fore, been tried and convicted by the people before 
the charges against him were even offered in the 
House. 3 

This preparation of the popular mind accom- 
plished, Chase was finally impeached. Eight articles 
setting forth the Republican accusations were laid 
before the Senate. Chase was accused of everything 

1 Dodd, 187-88. 

2 Adams to Rush, June 22, 1806, Old Family Letters, 100. 

3 Chase "is very obnoxious to the powers that be & must be de- 
nounced, but articles will not be exhibited agt him this session. The 
Accusers have collected a volume of exparte evidence against him, 
printed & published it in pamphlets, & now it is publishing in the 
Court gazette to be diffused in every direction. . . If a party to a suit 
at law, . . was to practice in this manner he would merit punishment." 
(Plumer to Smith, March 11, 1804, Plumer MSS. Lib. Cong.) 



172 JOHN MARSHALL 

of which anybody had complained since his appoint- 
ment to the Supreme Bench. His conduct at the 
trials of Fries and Callender was set forth with te- 
dious particularity : in Delaware he had stooped " to 
the level of an informer"; his charge to the grand 
jury at Baltimore was an "intemperate and inflam- 
atory political harangue"; he had prostituted his 
"high judicial character . . to the low purpose of an 
electioneering partizan"; his purpose was "to 
excite . . odium . . against the government." * 

This curious scramble of fault-finding, which was 
to turn out so fatally for the prosecution, was the 
work of Randolph. When the conglomerate indict- 
ment was drawn, no one, except perhaps Jefferson, 
had the faintest idea that the Republican plan would 
miscarry; Randolph's multifarious charges pleased 
those in Virginia, Pennsylvania, Delaware, and 
Maryland who had first made them; they were so 
drawn as to lay a foundation for the assault which 
was to follow immediately. "These articles," wrote 
John Quincy Adams, "contained in themselves a 
virtual impeachment not only of Mr. Chase, but of 

1 See supra, chap. I. For the articles of impeachment see Annals, 
8th Cong. 2d Sess. 85-88; Chase Trial, 10-11. 

The Republicans, for a time, contemplated the impeachment of 
Richard Peters, Judge of the United States Court for the District of 
Pennsylvania, who sat with Chase during the trial of Fries. {Annals, 
8th Cong. 1st Sess. 823-24, 850, 873-74.) But his name was dropped 
because he had not "so acted in his judiciary capacity as to require 
the interposition of the Constitutional powers of this House." {lb. 
1171.) 

Peters was terrified and turned upon his fellow judge. He showered 
Pickering and other friends with letters, complaining of the conduct 
of his judicial associate. "If I am to be immolated let it be with some 
other Victim — or for my own Sins." (Peters to Pickering, Jan. 26, 
1804, Pickering MSS. Mass. Hist. Soc.) 



IMPEACHMENT 173 

all the Judges of the Supreme Court from the first 
establishment of the national judiciary." \ 

In an extended and carefully prepared speech, 
Senator Giles, who had drawn the rules governing 
the conduct of the trial in the Senate, announced 
the Republican view of impeachment which, he 
said, "is nothing more than an enquiry, by the two 
Houses of Congress, whether the office of any public 
man might not be better filled by another." Adams 
was convinced that "this is undoubtedly the source 
and object of Mr. Chase's impeachment, and on the 
same principle any officer may easily be removed at 
any time." 2 

From the time the House took action against 
Chase, the Federalists were in despair. "I think the 
Judge will be removed from Office," was Senator 
Plumer \s opinion. 3 "The event of the impeachment 
is already determined," wrote Bayard before the 
trial began. 4 Pickering was certain that Chase would 
be condemned — so would any man that the House 
might impeach; such "measures . . are made ques- 
tions of party, and therefore at all events to be car- 
ried into effect according to the wishes of the prime 
mover [Jefferson]." 5 

As the day of the arraignment of the impeached 
Justice approached, his friends were not comforted 

1 J. Q. Adams to his father, March 14, 1805, Writings, J. Q. A.: 
Ford, in, 116. 

2 Dec. 20, 1804, Memoirs, J. Q. A.: Adams, i, 321. 

i Plumer to Cogswell, Jan. 4, 1805, Plumer MSS. Lib. Cong.; and 
see Plumer to Sheaf e, Jan. 9, 1805, Plumer MSS. he. cit. 

4 Bayard to Harper, Jan. 30, 1804, Bayard Papers: Donnan, 160. 

B Pickering to Lyman, March 14, 1804, Lodge: Cabot, 450; also 
N.E. Federalism: Adams, 359. 



174 JOHN MARSHALL 

by their estimate of the public temper. "Our public 
. . will be as tame as Mr. Randolph can desire," 
lamented Ames. "You may broil Judge Chase and 
eat him, or eat him raw; it shall stir up less anger 
or pity, than the Six Nations would show, if Corn- 
planter or Red Jacket were refused a belt of wam- 
pum." * 

When finally Chase appeared before the bar of the 
Senate, he begged that the trial should be postponed 
until next session, in order that he might have time 
to prepare his defense. His appeal fell on remorseless 
ears; the Republicans gave him only a month. But 
this scant four weeks proved fatal to their purpose. 
Jefferson's wise adjustment of the greatest financial 
scandal in American history 2 came before the House 
during this interval; and fearless, honest, but im- 
politic John Randolph attacked the Administration's 
compromise of the Yazoo fraud with a ferocity all 
but insane in its violence. Literally screaming with 
rage, he assailed Jefferson's Postmaster-General 
who was lobbying on the floor of the House for 
the passage of the President's Yazoo plan, and de- 
livered continuous philippics against that polluted 
transaction out of which later came the third of 
John Marshall's most notable opinions. 3 

In this frame of mind, nervously exhausted, physi- 
cally overwrought and troubled, the most brilliant 

1 Ames to Dwight, Jan. 20, 1805, Ames, i, 338. 

2 The Yazoo fraud. No other financial scandal in our history 
equaled this, if one considers the comparative wealth and population 
of the country at the times other various great frauds were perpetrated. 
For an account of it, see infra, chap. x. 

3 For Randolph's frantic speech on the Yazoo fraud and Marshall's 
opinion in Fletcher vs. Peck, see infra, chap. x. 



IMPEACHMENT 175 

and effective Congressional partisan leader of our 
early history came to the trial. Moreover, Ran- 
dolph had broken with the Administration and 
challenged Jefferson's hitherto undisputed partisan 
autocracy. This was the first public manifestation 
of that schism in the Republican Party which was 
never entirely healed. 

Such was the situation on the 4th of February, 
1805, when the Senate convened to hear and deter- 
mine the case of Samuel Chase, impeached by the 
House for high crimes and misdemeanors, to settle 
by the judgment it should render the fate of John 
Marshall as Chief Justice of the United States, and 
to fix forever the place of the National Judiciary in 
the scheme of American government. 

"Oyez! Oyez! Oyez! — All persons are com- 
manded to keep silence on pain of imprisonment, 
while the grand inquest of the nation is exhibiting 
to the Senate of the United States, sitting as a Court 
of Impeachments, articles of impeachment against 
Samuel Chase, Associate Justice of the Supreme 
Court of the United States." * 

So cried the Sergeant-at-Arms of the National 
Senate when, in the Chase trial, John Marshall, the 
Supreme Court, and the whole National Judiciary 
were called to judgment by Thomas Jefferson, on 
the bleak winter day in dismal, scattered, and quar- 
reling Washington. An audience crowded the Sen- 
ate Chamber almost to the point of suffocation. 
There were present not only the members of Senate 

1 This form was adopted in the trial of Judge Pickering. See An- 
nals, 8th Cong. 1st Sess. 319. 



176 JOHN MARSHALL 

and House, the officers of the Executive depart- 
ments, and the men and women of the Capital's 
limited society, but also scores of eminent persons 
from distant parts of the country. 1 

Among the spectators were John Marshall and the 
Associate Justices of the Supreme Court, thoroughly 
conscious that they, and the institution of which 
they were the highest representatives, were on trial 
almost as much as their imprudent, rough, and out- 
spoken fellow member of the Bench. It is not im- 
probable that they were helping to direct the defense 
of Chase, 2 in which, as officials, they were personally 
interested, and in which, too, all their convictions 
as citizens and jurists were involved. 

Marshall, aroused, angered, and frightened by the 
articles of the impeachment, had written his brother 
a year before the Chase trial that they are "suffi- 
cient to alarm the friends of a pure, and, of course, 
an independent Judiciary, if, among those who rule 
our land there be any of that description." 3 At 
the beginning of the proceedings Chase had asked 
Marshall, who was then in Richmond, to write an 
account of what occurred at the trial of Callender, 
and Marshall promptly responded: "I instantly 
applied to my brother 4 & to Mr. Wickham 5 to 
state their recollection of the circumstances under 
which Colo. Taylors testimon}^ was rejected. 6 They 
both declared that they remembred them very im- 

1 See Plumer, 323. 2 Channing: U.S. iv, 287. 

3 Marshall to James M. Marshall, April 1, 1804, MS. 

4 William Marshall. See infra, 191-92. 

6 John Wickham, leader of the Richmond bar and one of Mar- 
shall's intimate friends. 

6 See supra, chap, i; and infra. 



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IMPEACHMENT 177 

perfectly but that they woud endeavor to recollect 
what passed & commit it to writing. I shall bring 
it with me to Washington in february." Marshall 
also promised to bring other documents. 

"Admitting it to be true," continues Marshall, 
"that on legal principles Colo. Taylors testimony 
was admissible, it certainly constitutes a very ex- 
traordinary ground for an impeachment. Accord- 
ing to the antient doctrine a jury finding a verdict 
against the law of the case was liable to an attaint; 
& the amount of the present doctrine seems to be 
that a Judge giving a legal opinion contrary to the 
opinion of the legislature is liable to impeachment. 

"As, for convenience & humanity the old doctrine 
of attaint has yielded to the silent, moderate but 
not less operative influence of new trials, I think 
the modern doctrine of impeachment should yield 
to an appellate jurisdiction in the legislature. A re- 
versal of those legal opinions deemed unsound by 
the legislature would certainly better comport with 
the mildness of our character than [would] a removal 
of the Judge who has rendered them unknowing of 
his fault. 

"The other charges except the 1st & 4th which 
I suppose to be altogether unfounded, seem still less 
to furnish cause for impeachment. But the little 
finger of [blotted out — probably "democracy"] is 
heavier than the loins of . 1 

"Farewell — With much respect and esteem. . . 

"J. Marshall." 2 

1 See 1 Kings, xii, 10. 

2 Marshall to Chase, Jan. 23, 1804, Etting MSS. Pa. Hist. Soc. 



178 JOHN MARSHALL 

Marshall thus suggested the most radical method 
for correcting judicial decisions ever advanced, be- 
fore or since, by any man of the first class. Appeals 
from the Supreme Court to Congress ! Senators and 
Representatives to be the final judges of any judi- 
cial decision with which a majority of the House was 
dissatisfied ! Had we not the evidence of Marshall's 
signature to a letter written in his well-known hand, 
it could not be credited that he ever entertained 
such sentiments. They were in direct contradiction 
to his reasoning in Marbury vs. Madison, utterly 
destructive of the Federalist philosophy of judicial 
control of legislation. 

The explanation is that Marshall was seriously 
alarmed. By his own pen he reveals to us his state 
of mind before and on that dismal February day 
when he beheld Samuel Chase arraigned at the bar 
of the Senate of the United States. During the 
trial Marshall's bearing as a witness * again ex- 
hibited his trepidation. And, as we have seen, he 
had good cause for sharp anxiety. 2 

The avowed Republican purpose to remove him 
and his Federalist associates from the Supreme Bench, 
the settled and well-known intention of Jefferson to 
appoint Spencer Roane as Chief Justice when Mar- 
shall was ousted, and the certainty that this would 
be fatal to the execution of those fundamental princi- 
ples of government to which Marshall was so passion- 
ately devoted — these important considerations fully 
warranted the apprehension which the Chief Justice 
felt and now displayed. 

1 See infra, 192-96. 2 See supra, chap, in, 113. 



IMPEACHMENT 179 

Had he been indifferent to the peril that con- 
fronted him and the whole National Judiciary, he 
would have exhibited a woeful lack of sense and 
feeling. He was more than justified in resorting to 
any honorable expedient to save the great office he 
held from occupancy by a resolute and resourceful 
foe of those Constitutional theories, the application 
of which, Marshall firmly believed, was indispensable 
to the sound development of the American Nation. 

The arrangements for the trial were as dramatic 
as the event itself was momentous. 1 The scenes of 
the impeachment prosecution of Warren Hastings 
were still vivid in the minds of all, and in imitation 
of that spectacle, the Senate Chamber was now be- 
decked with impressive splendor. It was aglow with 
theatrical color, and the placing of the various seats 
was as if a tragic play were to be performed. 

To the right and left of the President's chair were 
two rows of benches with desks, the whole covered 
with crimson cloth. Here sat the thirty-four Sena- 
tors of the United States. Three rows of benches, 
arranged in tiers, extended from the wall toward the 
center of the room; these were covered with green 
cloth and were occupied by the members of the 
House of Representatives. Upon their right an en- 
closure had been constructed, and in it were the 
members of Jefferson's Cabinet. 

Beneath the permanent gallery to which the 
general public was admitted, a temporary gallery, 
supported by pillars, ran along the wall, and faced 

"M r Burr had the sole power of making the arrangements . . for 
the trial." (Plumer to Sheafe, Jan. 9, 1805, Plumer MSS. Lib. Cong.) 



180 JOHN MARSHALL 

the crimson-covered places of the Senators. At 
either end of it were boxes. Comfortable seats had 
been provided in this enclosure; and these were 
covered with green cloth, which also was draped over 
the balustrade. 

This sub-gallery and the boxes were filled with 
ladies dressed in the height of fashion. A passage- 
way was left from the President's chair to the door- 
way. On either side of this aisle were two stalls 
covered with blue cloth, as were also the chairs 
within them. They were occupied by the managers 
of the House of Representatives and by the lawyers 
who conducted the defense. 1 

A short, slender, elegantly formed man, with 
pallid face and steady black eyes, presided over this 
Senatorial Court. He was carefully dressed, and his 
manners and deportment were meticulously correct. 
Aaron Burr, fresh from his duel with Hamilton, and 
under indictment in two States, had resumed his 
duties as Vice-President. Nothing in the bearing of 
this playwright character indicated in the smallest 
degree that anything out of the ordinary had hap- 
pened to him. The circumstance of his presence, 
however, dismayed even the most liberal of the 
New England Federalists. " We are indeed fallen on 
evil times," wrote Senator Plumer. "The high office 
of President is filled by an infidel, that of Vice- 
President by a murderer." 2 

For the first time since the Republican victory of 
1800, which, but for his skill, courage, and energy in 

1 Annals, 8th Cong. 2d Sess. 100; Chase Trial, 2-5. 

2 Plumer to Norris, Nov. 7, 1804, Plumer, 329. 



IMPEACHMENT 181 

New York, would not have been achieved, 1 Burr 
now found himself in favor with the Administration 
and the Republican chieftains. 2 Jefferson deter- 
mined that Aaron Burr must be captured — at least 
conciliated. He could not be displaced as the pre- 
siding officer at the Chase impeachment trial; his 
rulings would be influential, perhaps decisive; the 
personal friendship and admiration of several Sena- 
tors for him were well known; the emergency of 
the Republican Party was acute. Chase must be 
convicted at all hazards; and while nobody but 
Jefferson then doubted that this would be the result, 
no chances were to be taken, no precaution over- 
looked. 

The President had rewarded the three principal 
witnesses against Pickering with important and 
lucrative offices 3 after the insane judge had been 
removed from the bench. Indeed he had given the 
vacated judgeship to one of these witnesses. But 
such an example Jefferson well knew would have no 
effect upon Burr; even promises would avail nothing 
with the man who for nearly three years had suffered 
indignity and opposition from an Administration 
which he, more than any one man except Jefferson 
himself, had placed in power. 

1 See infra, chap. vi. 

2 See J. Q. Adams to his father, Jan. 5, 1805, Writings, J. Q. A.: 
Ford, m, 104. 

3 Plumer, 274. "John S. Sherburne, Jonathan Steele, Michael 
McCleary and Richard Cutts Shannon were the principal witnesses 
against Pickering. Sherburne was appointed Judge [in Pickering's 
place]; Steele, District Attorney; McCleary, Marshal; and Shannon, 
Clerk of the Court. . . Steele, expecting to have been Judge refused to 
accept his appointment, assigning as the reason his agency in the re- 
moval of Pickering." 



182 JOHN MARSHALL 

So it came about that Vice-President Aaron Burr, 
with only four weeks of official life left him, with the 
whole North clamorous against him because of his 
killing of Hamilton and an indictment of murder 
hanging over him in New Jersey, now found himself 
showered with favors by those who owed him so 
much and who, for nearly four years, had so grossly 
insulted him. 

Burr's stepson, his brother-in-law, his most inti- 
mate friend, were forthwith appointed to the three 
most valuable and commanding offices in the new 
government of the Louisiana Territory, at the at- 
tractive city of New Orleans. 1 The members of 
the Cabinet became attentive to Burr. The Presi- 
dent himself exercised his personal charm upon the 
fallen politician. Time after time Burr was now 
invited to dine with Jefferson at the Executive 
Mansion. 

Nor were Presidential dinners, the bestowal of 
patronage hitherto offensively refused, and atten- 
tions of the Cabinet, the limit of the efforts to win 
the cooperation of the man who was to preside over 
the trial of Samuel Chase. Senator Giles drew a 
petition to the Governor of New Jersey begging that 
the prosecution of Burr for murder be dropped, and 
to this paper he secured the signature of nearly all 
the Republican Senators. 2 

Burr accepted these advances with grave and 

1 Plumer, 329-30; and see Adams: U.S. n, 220. 

2 Nov. 26, 1804, Memoirs, J. Q. A.: Adams, i, 317-18; and Adams, 
U.S. ii, 220-22. 

"Burr is flattered and feared by the administration." (Plumer to 
Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.; and Plumer to 
Wilson, Dec. 7, 1804, Plumer MSS. loc. tit.) 



IMPEACHMENT 183 

reserved dignity; but he understood the purpose 
that inspired them, did not commit himself, and 
remained uninfluenced and impartial. Throughout 
the momentous trial the Vice-President was a model 
presiding officer. "He conducted with the dignity 
and impartiality of an angel, but with the rigor of 
a devil," records a Washington newspaper that was 
bitterly hostile to Burr personally and politically. 1 

When Chase took his place in the box, the 
Sergeant-at-Arms brought him a chair; but Burr, 
adhering to the English custom, which required 

1 Davis, n, 360; also Adams: U.S. 218-44. 

"It must be acknowledged that Burr has displayed much ability, 
and since the first day I have seen nothing of partiality." (Cutler to 
Torrey, March 1, 1805, Cutler: Life, Journals and Correspondence of 
Manasseh C viler, ii, 193.) 

At the beginning of the trial, however, Burr's rigor irritated the 
Senate: "Mr. Burr is remarkably testy — he acts more of the tyrant 

— is impatient, passionate — scolds — he is in a rage because we do 
not sit longer." (Plumer, Feb. 8, 1805, " Diary," Plumer MSS. Lib, 
Cong.) 

"Just as the time for adjourning to morrow was to be put . . Mr. 
Burr said he wished to inform the Senate of some irregularities that he 
had observed in the Court. 

"Some of the Senators as he said during the trial & while a witness 
was under examination walked between him & the Managers — 
others eat apples — & some eat cake in their seats. 

"Mr. Pickering said he eat an apple — but it was at a time when the 
President had retired from the chair. Burr replied he did not mean 
him — he did not see him. 

"Mr. Wright said he eat cake — he had a just right to do so — he 
was faint — but he disturbed nobody — He never would submit to 
be schooled & catechised in this manner. 

"At this instance a motion was made by Bradley, who also had 
eaten cake, for an adjournment. Burr told Wright he was not in order 

— sit down. The Senate adjourned — & I left Burr and Wright 
scolding. 

"Really, Master Burr, you need a ferule, or birch to enforce your 
lectures on polite behavior!" (lb. Feb. 12, 1805; also ib. Jan. 2, 
1805.) Burr was sharply criticized by the Washington Federalist, 
January 8, for his rude conduct at the beginning of the trial. 



184 JOHN MARSHALL 

prisoners to stand when on trial in court, ordered 
it to be taken away. 1 Upon the request of the eld- 
erly Justice, however, Burr quickly relented and the 
desired seat was provided. 2 

Chase was, in appearance, the opposite of the 
diminutive and graceful Vice-President. More than 
six feet tall, with thick, broad, burly shoulders, he 
was a picture of rugged and powerful physical man- 
hood, marred by an accumulation of fat which his 
generous manner of living had produced. Also he 
was afflicted with an agonizing gout, with which it 
seems so many of " the fathers " were cursed. His face 
was broad and massive, his complexion a brownish 
red. 3 "Bacon face" was a nickname applied to him 
by the Maryland bar. 4 His head was large, his brow 
wide, and his hair was thick and white with the snows 
of his sixty -four winters. 5 

1 Plumer to Sheaf e, Jan. 1805, Plumer, 330-31. 

2 Annals, 8th Cong. 2d Sess. 92; Chase Trial, 4. 

3 Dwight : Signers of the Declaration of Independence, 245-52. 

4 Hudson: Journalism in the United States, 1690-1872, 214; and 
see Story to Bramble, June 10, 1807, Story, i, 154. 

6 "In person, in manners, in unwieldy strength, in severity of re- 
proof, in real tenderness of heart; and above all in intellect," he was 
"the living, I had almost said the exact, image of Samuel Johnson." 
(Story to Fay, Feb. 25, 1808, Story, i, 168.) 

Chase's career had been stirring and important. Carefully educated 
by his father, an Episcopal clergyman, and thoroughly grounded in 
the law, he became eminent at the Maryland bar at a very early age. 
From the first his aggressive character asserted itself. He was rudely 
independent and, as a member of the Maryland House of Burgesses, 
treated the royal governor and his Tory partisans with contemptuous 
defiance. When the British attempted to enforce the Stamp Act, he 
joined a band of high-spirited young patriots who called themselves 
"The Sons of Liberty," and led them in their raids upon public offices, 
which they broke open, seizing and destroying the stamps and burn- 
ing in effigy the stamp distributor. 

His violent and fearless opposition to British rule and officials 



IMPEACHMENT 1S5 

The counsel that surrounded the impeached Jus- 
tice were brilliant and learned. 1 They were Joseph 
Hopkinson, who six years before, upon Marshall's 
return from France, had written "Hail Columbia: 
or, The President's March"; Philip Barton Key, 
brother of the author of "The Star-Spangled Ban- 
ner"; 2 Robert Goodloe Harper, one of the Federalist 
leaders in Congress during the ascendancy of that 
party; and Charles Lee, Attorney-General under 
President Adams when Marshall was Secretary of 
State, and one of Marshall's most devoted friends. 3 

But in the chair next to Chase sat a man who, 
single-handed and alone, was more than a match for 

made young Chase so popular that he was elected as one of the five 
Maryland delegates to the first Continental Congress that assembled 
during the winter of 1774. He was reelected the following year, and 
was foremost in urging the measures of armed defense that ended 
in the appointment of Washington as Commander-in-Chief of the 
American forces. Disregarding the instructions of his State, Chase 
hotly championed the adoption of the Declaration of Independence, 
and was one of the signers of that document. 

On the floor of Congress he denounced a member as a traitor — ■ 
one Zubly, a Georgia parson — who in terror fled the country. Chase 
continued in the Continental Congress until 1778 and was appointed 
a member of almost every important committee of that body. He 
became the leader of his profession in Maryland, was appointed Chief 
Justice of the Criminal Court of Baltimore, and elected a member of 
the Maryland Convention, called to ratify the National Constitution. 
Thereafter, he was made Chief Justice of the Supreme Court of the 
State. In 1796, President Washington appointed Chase as Associate 
Justice of the National Supreme Court of which he was conceded to 
be one of the ablest members. (Dwight, 245-52.) 

1 See Plumer to his brother, Feb. 25, 1805, Plumer MSS. Lib. 
Cong. 

2 Maryland Historical Society Fund-Publication No. 2k, p. 20. 
Burr told Key that "he must not appear as counsel with his loose 
coat on." (Plumer, Feb. 11, 1805, " Diary," Plumer MSS. Lib. Cong.) 

3 Adams: U.S. n, 227-28. Bayard strongly urged Chase to have 
no counsel, but to defend himself. (Bayard to Harper, Jan. 30, 1804, 
Bayard Papers : Donnan, 159-60.) 



186 JOHN MARSHALL 

all the managers of the House put together. Luther 
Martin of Maryland — of medium height, broad- 
shouldered, near-sighted, absent-minded, shabbily 
attired, harsh of voice, now sixty-one years old, 
with gray hair beginning to grow thin and a face 
crimsoned by the brandy which he continually im- 
bibed — was the dominating figure of this historic 
contest. 1 

1 See Story's description of Martin three years later, Story to Fay, 
Feb. 16, 1808, Story, i, 163-64. 

Luther Martin well illustrates the fleeting nature of the fame 
of even the greatest lawyers. For two generations he was "an ac- 
knowledged leader of the American bar," and his preeminence in 
that noble profession was brightened by fine public service. Yet 
within a few years after his death, he was totally forgotten, and to- 
day few except historical students know that such a man ever lived. 

Martin began his practice of the law when twenty-three years of 
age and his success was immediate and tremendous. His legal learning 
was prodigious — his memory phenomenal. 

Apparently, Martin was the heaviest drinker of that period of 
heavy drinking men. The inexplicable feature of his continuous ex- 
cesses was that his mighty drinking seldom appeared to affect his 
professional efficiency. Only once in his long and active career did 
intoxication interfere with his work in court. (See infra, 586.) 

Passionate in his loves and hates, he abhorred Jefferson with all 
the ardor of his violent nature; and his favorite denunciation of any 
bad man was, "Sir! he is as great a scoundrel as Thomas Jefferson." 

For thirty years Martin was the Attorney-General of Maryland. 
He was the most powerful member of his State in the Convention that 
framed the National Constitution which he refused to sign, opposing 
the ratification of it in arguments of such signal ability that forty 
years afterward John C. Calhoun quarried from them the material for 
his famous Nullification speeches. 

When, however, the Constitution was ratified and became the 
supreme law of the land, Martin, with characteristic wholehearted- 
ness, supported it loyally and championed the Administrations of 
Washington and Adams. 

He was the lifelong friend of the impeached justice, to whom he 
owed his first appointment as Attorney-General of Maryland as well 
as great assistance and encouragement in the beginning of his career. 
Chase and he were also boon companions, each filled with admiration 
for the talents and attainments of the other, and strikingly similar in 



IMPEACHMENT 187 

Weary and harried as he was, Randolph opened 
the trial with a speech of some skill. He contrasted 
the conduct of Chase in the trial of Callender with 
that of Marshall in a trial in Richmond in 1804 at 
which Marshall had presided. "Sir," said Randolph, 
"in the famous case of Logwood, 1 whereat the 
Chief Justice of the United States presided, I was 
present, being one of the grand jury who found a 
true bill against him. . . The government was as 
deeply interested in arresting the career of this 
dangerous and atrocious criminal, who had aimed 
his blow against the property of every man in soci- 
ety, as it could be in bringing to punishment a weak 
and worthless scribbler [Callender]." 

But how had Marshall acted in the conduct of that, 
trial? "Although," continued Randolph, "much 
testimony was offered by the prisoner, which did 
by no means go to his entire exculpation, although 

their courage and fidelity to friends and principles. So the lawyer 
threw himself into the fight for the persecuted judge with all his 
astonishing strength. 

When, in his old age, he was stricken with paralysis, the Maryland 
Legislature placed a tax of five dollars annually on all lawyers for his 
support. After Martin's death the bench and bar of Baltimore passed 
a resolution that "we will wear mourning for the space of thirty 
days." (American Law Review, i, 279.) 

No biography of Martin has ever been written; but there are two 
excellent sketches of his life, one by Ashley M. Gould in Great Amer- 
ican Lawyers: Lewis, n, 3-46; and the other by Henry P. Goddard 
in the Md. Hist. Soc. Fund. Pub. No. U. 

1 Annals, 8th Cong. 2d Sess. 160-61. The case to which Randolph 
refers was that of the United States vs. Thomas Logwood, indicted in 
April, 1801, for counterfeiting. Logwood was tried in the United 
States Circuit Court at Richmond during June, 1804. Marshall, sit- 
ting with District Judge Cyrus Griffin, presided. Notwithstanding 
Marshall's liberality, Logwood was convicted and Marshall sentenced 
him to ten years' imprisonment at hard labor. (Order Book No. 4, 
464, Records, U.S. Circuit Court, Richmond.) 



188 JOHN MARSHALL 

much of that testimony was of a very questionable 
nature, none of it was declared inadmissable." 
Marshall suffered it "to go to the jury, who were 
left to judge of its weight and credibility"; nor had 
he required "any interrogatories to the witnesses . . 
to be reduced to writing," — such a thing never had 
been done in Virginia before the tyrannical ruling of 
Chase in the trial of Callender. 

"No, Sir!" he cried. "The enlightened man who 
presided in Logwood's case knew that, although the 
basest and vilest of criminals, he was entitled to 
justice, equally with the most honorable member of 
society." Marshall "did not avail himself of the 
previous and great discoveries in criminal law, of 
this respondent [Chase]"; Marshall "admitted the 
prisoner's testimony to go to the jury"; Marshall 
"never thought it his right or his duty to require 
questions to be reduced to writing"; Marshall "gave 
the accused a fair trial according to law and usage, 
without any innovation or departure from the 
established rules of criminal jurisprudence in his 
country." 

Marshall's gentle manner and large-minded, soft- 
spoken rulings as a trial judge were thus adroitly 
made to serve as an argument for the condemnation 
of his associate, and for his own undoing if Chase 
should be convicted. Randolph denounced "the 
monstrous pretension that an act to be impeachable 
must be indictable. Where? In the Federal Courts? 
There, not even robbery and murder are indictable." 

A judge could not, under the National law, be in- 
dicted for conducting a National court while drunk, 




JOHN RANDOLPH 



IMPEACHMENT 189 

and perhaps not in all State courts. "It is indictable 
nowhere for hirn to omit to do his duty, to refuse 
to hold a court. But who can doubt that both are 
impeachable offenses, and ought to subject the 
offender to removal from office? " 

The autocrat of Congress then boldly announced 
to the Republican Senators that the House mana- 
gers "confidently expect on his [Chase's] convic- 
tion. . . We shall bring forward . . such a specimen 
of judicial tyranny, as, I trust in God, will never be 
again exhibited in our country." x 

Fifty -two witnesses were examined. It was estab- 
lished that, in the trial of Fries, Chase had written 
the opinion of the court upon the law before the jury 
was sworn, solely in order to save time; had with- 
drawn the paper and destroyed it when he found 
Fries 's counsel resented the court's precipitate ac- 
tion; and, finally, had repeatedly urged them to 
proceed with the defense without restriction. Chase's 
inquisitorial conduct in Delaware was proved, and 
several witnesses testified to the matter and manner 
of his charge to the Baltimore grand jury. 2 

Every incident in the trial of Callender 3 was 
described by numerous witnesses. 4 George Hay, 

1 Annals, 8th Cong. 2d Sess. 163-65; Chase Trial, 18. Randolph 
disgusted the Federalists. "This speech is the most feeble — the most 
incorrect that I ever heard him make." (Plumer, Feb. 9, 1805, "Diary," 
Plumer MSS. Lib. Cong.) 

2 Two witnesses to the Baltimore incident, George Reed and John 
Montgomery, committed their testimony to memory as much "as 
ever a Presbyterian clergyman did his sermon — or an Episcopa- 
lian his prayer." (Plumer, Feb. 14, 1805, "Diary," Plumer MSS. Lib. 
Cong.) 

3 See supra, chap. i. 

« Annals, 8th Cong. 2d Sess. 203-05; Chase Trial, 36-37. 



190 JOHN MARSHALL 

who had been the most aggressive of Callender's 
counsel, was so anxious to help the managers that 
he made a bad impression on the Senate by his 
eagerness. 1 It developed that the whole attitude of 
Chase had been one of sarcastic contempt; and that 
Callender's counsel were more piqued by the laugh- 
ter of the spectators which the witty sallies and hu- 
morous manner of the Justice excited, than they were 
outraged by any violence on Chase's part, or even 
by what they considered the illegal and oppressive 
nature of his rulings. 

When, in defending Callender, Hay had insisted 
upon "a literal recital of the parts [of The Prospect 
Before Us] charged as libellous," Chase, looking 
around the court-room, said with an ironical smile: 
"It is contended . . that the book ought to be cop- 
ied verbatim et literatim, I wonder, . . that they do not 
contend for punctuatim too." 2 The audience laughed. 
Chase's interruption of Wirt 3 by calling the young 
lawyer's " syllogistical " conclusion a "won sequitur, 
sir," was accompanied by an inimitable "bow" that 
greatly amused the listeners. 

In short, the interruptions of the sardonic old Jus- 
tice were, as John Taylor of Caroline testified, in "a 
very high degree imperative, satirical, and witty 
. . [and] extremely well calculated to abash and dis- 
concert counsel." 4 

1 Plumer, Feb. 11, 1805, "Diary," Plumer MSS. Lib. Cong. 

2 Annals, 8th Cong. 2d Sess. 200; Chase Trial, 35. 

3 See supra, chap. i. 

4 Annals, 8th Cong. 2d Sess. 207. John Quincy Adams's descrip- 
tion of all of the evidence is important and entertaining: 

"Not only the casual expressions dropped in private conversations 
among friends and intimates, as well as strangers and adversaries, in 



IMPEACHMENT 191 

Among the witnesses was Marshall's brother 
William, whom President Adams had appointed 
clerk of the United States Court at Richmond. 1 
His testimony was important on one point. One 
John Heath, a Richmond attorney and a perfect 
stranger to Chase, had sworn that Chase, in his 
presence, had asked the United States Marshal, 
David M. Randolph, "if he had any of those crea- 
tures or people called democrats on the panel of 
the jury to try Callender"; that when the Marshal 
replied that he had "made no discrimination," the 

the recess of a bed-chamber as well as at public taverns and in stage 
coaches, had been carefully and malignantly laid up and preserved 
for testimony on this prosecution; not only more witnesses examined 
to points of opinion, and called upon for discrimination to such a 
degree as to say whether the deportment of the Judge was imperative 
or imperious, but hours of interrogation and answer were consumed 
in evidence to looks, to bows, to tones of voice and modes of speech — 
to prove the insufferable grievance that Mr. Chase had more than 
once raised a laugh at the expense of Callender's counsel, and to ascer- 
tain the tremendous fact that he had accosted the Attorney General 
of Virginia by the appellation of Young Gentleman!! 

"If by thumbscrews, the memory of a witness trace back for a 
period of five years the features of the Judge's face, it could be dark- 
ened with a frown, it was to be construed into rude and contumelious 
treatment of the Virginia bar; if it was found lightened with a smile, 
'tyrants in all ages had been notorious for their pleasantry.' 

"In short, sir, Gravity himself could not keep his countenance at 
the nauseating littlenesses which were resorted to for proof of atro- 
cious criminality, and indignation melted into ridicule at the puerile 
perseverance with which nothings were accumulated, with the hope of 
making something by their multitude. 

"All this, however, was received because Judge Chase would not 
suffer his counsel to object against it. He indulged his accusers with 
the utmost licence of investigation which they ever derived [sic], and 
contented himself with observing to the court that he expected to be 
judged upon the legal evidence in the case." (J. Q. Adams to his 
father, March 8, 1805, Writings, J. Q. A.: Ford, in, 112-13.) 

1 This was the fourth member of the Marshall family upon whom 
offices were bestowed while Marshall was Secretary of State. (See 
vol. II, 560, of this work.) 



192 JOHN MARSHALL 

Judge told him "to look over the panel and if there 
were any of that description, strike them off." 

William Marshall, on the contrary, made oath 
that Chase told him that he hoped even Giles would 
serve on the jury — "Nay, he wished that Callender 
might be tried by a jury of his own politics." 
David M. Randolph then testified that he had never 
seen Heath in the Judge's chambers, that Chase 
"never at any time or place" said anything to him 
about striking any names from the jury panel, and 
that he never received "any instructions, verbal, 
or by letter, from Judge Chase in relation to the 
grand jury." * 

John Marshall himself was then called to the 
stand and sworn. Friendly eye-witnesses record that 
the Chief Justice appeared to be frightened. He 
testified that Colonel Harvie, with whom he "was 
intimately acquainted," 2 had asked him to get the 
Marshal to excuse Harvie from serving on the jury 
because "his mind was completely made up . . and 
whatever the evidence might be, he should find the 
traverser not guilty." When Marshall told this to 
the court official, the latter said that Harvie must 

1 Annals, 8th Cong. 2d Sess. 251-62; Chase Trial, 65-69. "I was 
unable to give credence to his [Heath's] testimony." (Plumer. Feb. 
12, 1805, "Diary," Plumer MSS. Lib. Cong.) Although Heath's 
story was entirely false, it has, nevertheless, found a place in serious 
history. 

Marshall's brother made an excellent impression on the Senate. 
"His answers were both prompt & lucid — There was a frankness, a 
fairness & I will add a firmness that did him much credit. His testi- 
mony was [on certain points] . . a complete defense of the accused." 
(lb. Feb. 15, 1805.) 

2 Harvie's son, Jacquelin B. Harvie, married Marshall's daughter 
Mary. (Paxton: Marshall Family, 100.) 



B1PEACHMENT 193 

apply to the Judge, because he "was watched," and 
"to prevent any charge of improper conduct" he 
would not discharge any of the jury whom he had 
summoned. Marshall then induced Chase to release 
Harvie "upon the ground of his being sheriff of 
Henrico County and that his attendance was neces- 
sary " at the county court then in session. 

Marshall said that he was in court during a part 
of the Callender trial and that "there were several 
circumstances that took place . . on the part both 
of the bar and the bench which do not always occur 
at trials. . . The counsel appeared . . to wish to 
argue to the jury that the Sedition Law was uncon- 
stitutional. Mr. Chase said that that was not a 
proper question to go to the jury"; and that when- 
ever Callender's attorneys began to argue to the 
contrary the court stopped them. 

The Chief Justice further testified that George 
Hay had addressed the court to the effect that in 
this ruling Chase was "not correct in point of law," 
and again the Judge "stopped him"; that "Mr. Hay 
still went on and made some political observations; 
Judge Chase stopped him again and the collision 
ended by Mr. Hay sitting down and folding up his 
papers as if he meant to retire." 

Marshall did not recollect "precisely," although 
it appeared to him that "whenever Judge Chase 
thought the counsel incorrect in their points, he 
immediately told them so and stopped them short." 
This "began early in the proceedings and increased. 
On the part of the judge it seemed to be a disgust 
with regard to the mode adopted by the traverser's 



194 JOHN MARSHALL 

counsel, at least . . as to the part which Mr. Hay 
took in the trial." 

Randolph asked Marshall whether it was the prac- 
tice for courts to hear counsel argue against the 
correctness of rulings; and Marshall replied that "if 
counsel have not been already heard, it is usual to 
hear them in order that they may change or confirm 
the opinion of the court, when there is any doubt 
entertained." But there was "no positive rule on 
the subject and the course pursued by the court will 
depend upon circumstances: Where the judge be- 
lieves that the point is perfectly clear and settled 
he will scarcely permit the question to be agitated. 
However, it is considered as decorous on the part 
of the judge to listen while the counsel abstain from 
urging unimportant arguments." 

Marshall was questioned closely as to points of 
practice. His answers were not favorable to his 
Associate Justice. Did it appear to him that "the 
conduct of Judge Chase was mild and conciliatory" 
during the trial of Callender? Marshall replied that 
he ought to be asked what Chase's conduct was and 
not what he thought of it. Senator William Cocke 
of Tennessee said the question was improper, and 
Randolph offered to withdraw it. "No!" exclaimed 
Chase's counsel, "we are willing to abide in this trial 
by the opinion of the Chief Justice." Marshall de- 
clared that, except in the Callender trial, he never 
heard a court refuse to admit the testimony of a wit- 
ness because it went only to a part and not to the 
whole of a charge. 

Burr asked Marshall: "Do you recollect whether 



IMPEACHMENT 195 

the conduct of the judge at this trial was tyrannical, 
overbearing and oppressive?" "I will state the 
facts," cautiously answered the Chief Justice. 
"Callender's counsel persisted in arguing the ques- 
tion of the constitutionality of the Sedition Law, 
in which they were constantly repressed by Judge 
Chase. Judge Chase checked Mr. Hay whenever 
he came to that point, and after having resisted 
repeated checks, Mr. Hay appeared to be deter- 
mined to abandon the cause, when he was desired 
by the judge to proceed with his argument and in- 
formed that he should not be interrupted there- 
after. 

"If," continued Marshall, "this is not considered 
tyrannical, oppressive and overbearing, I know 
nothing else that was so." It was usual for courts 
to hear counsel upon the validity of rulings "not 
solemnly pronounced," and "by no means usual in 
Virginia to try a man for an offense at the same term 
at which he is presented"; although, said Marshall, 
"my practice, while I was at the bar was very lim- 
ited in criminal cases." 

"Did you ever hear Judge Chase apply any un- 
usual epithets — such as i young men'' or ' young 
gentlemen* — 'to counsel?" inquired Randolph. "I 
have heard it so frequently spoken of since the 
trial that I cannot possibly tell whether my recol- 
lection of the term is derived from expressions used 
in court, or from the frequent mention since made 
of them." But, remarked Marshall, having thus 
adroitly placed the burden on the irresponsible 
shoulders of gossip, "I am rather inclined to think 



196 JOHN MARSHALL 

that I did hear them from the judge." Randolph 
then drew from Marshall the startling and impor- 
tant fact that William Wirt was "about thirty years 
of age and a widower." 1 

Senator Plumer, with evident reluctance, sets 
down in his diary a description from which it would 
appear that Marshall's manner affected the Senate 
most unfavorably. "John Marshall is the Chief 
Justice of the Supreme Court of the United States. 
I was much better pleased with the manner in which 
his brother testified than with him. 

"The Chief Justice really discovered too much 
caution — too much fear — too much cunning — ■ 
He ought to have been more bold — frank & explicit 
than he was. 

"There was in his manner an evident disposition 
to accommodate the Managers. That dignified 
frankness which his high office required did not ap- 
pear. A cunning man ought never to discover the 
arts of the trimmer in his testimony," 2 

Plainly Marshall was still fearful of the outcome 
of the Republican impeachment plans, not only as 
to Chase, but as to the entire Federalist member- 
ship of the Supreme Court. His understanding of 
the Republican purpose, his letter to Chase, and his 
manner on the stand at the trial leave no doubt as 
to his state of mind. A Republican Supreme Court, 
with Spencer Roane as Chief Justice, loomed for- 
biddingly before him. 

Chase was suffering such agony from the gout 

1 Annals, 8th Cong. 2d Sess. 262-67; Chase Trial, 71. 

2 Plumer, Feb. 16, 1805, "Diary," Plumer MSS. Lib. Cong. 



IMPEACHMENT 197 

that, when the testimony was all in, he asked to 
be released from further attendance. 1 Six days be- 
fore the evidence was closed, the election returns 
were read and counted, and Aaron Burr "declared 
Thomas Jefferson and George Clinton to be duly 
elected to the respective offices of President and 
Vice-President of the United States." 2 For the 
first time in our history this was done publicly; on 
former occasions the galleries were cleared and the 
doors closed. 3 

Throughout the trial Randolph and Giles were in 
frequent conference — judge and prosecutor work- 
ing together for the success of the party plan. 4 On 
February 20 the arguments began. Peter Early of 
Georgia spoke first. His remarks were "chiefly 
declamatory." 5 He said that the conduct of Chase 
exhibited that species of oppression which puts 
accused citizens "at the mercy of arbitrary and 
overbearing judges." For an hour and a half he 
reviewed the charges, 6 but he spoke so badly that 
"most of the members of the other House left the 
chamber & a large portion of the spectators the 
gallery." 7 

1 Feb. 19, 1805, Memoirs, J. Q. A.: Adams, i, 354. 

Chase did not leave Washington, and was in court when some of the 
arguments were made. (See Chase to Hopkinson, March 10, 1805; 
Hopkinson MSS. in possession of Edward P. Hopkinson, Phila.) 

2 Feb. 13, 1805, Memoirs, J. Q. A.: Adams, i, 351. 

3 lb. The motion to admit the public was carried by one vote only. 
(Plumer, Feb. 13, 1805, "Diary," Plumer MSS. Lib. Cong.) 

4 Feb. 13, 1805, Memoirs, J. Q. A.: Adams, i, 353. 
6 Feb. 20, 1805, ib. 355. 

6 Cutler, n, 183; also Annals, 8th Cong. 2d Sess. 313-29; Chase 
Trial, 101-07. 
* Plumer, Feb. 20, 1805, " Diary," Plumer MSS. Lib. Cong. 



198 JOHN MARSHALL 

George Washington Campbell of Tennessee ar- 
gued "long and tedious[ly]" l for the Jeffersonian 
idea of impeachment which he held to be "a kind 
of an inquest into the conduct of an officer . . and the 
effects that his conduct . . may have on society." 
He analyzed the official deeds of Chase by which 
"the whole community seemed shocked. . . Future 
generations are interested in the event." 2 He spoke 
for parts of two days, having to suspend midway in 
the argument because of exhaustion. 3 Like Early, 
Campbell emptied the galleries and drove the mem- 
bers of the House, in disgust, from the floor. 4 

Joseph Hopkinson then opened for the defense. 
Although but thirty-four years old, his argument 
was not surpassed, 5 even by that of Martin — in 
fact, it was far more orderly and logical than that 
of Maryland ' s great attorney-general . ' ' We appear, ' ' 
began Hopkinson, "for an ancient and infirm man, 
whose better days have been worn out in the serv- 
ice of that country which now degrades him." The 
case was "of infinite importance," truly declared 
the youthful attorney. "The faithful, the scrutiniz- 
ing historian, . . without fear or favor" will render 
the final judgment. The House managers were fol- 
lowing the British precedent in the impeachment of 
Warren Hastings; but that celebrated prosecution 
had not been instituted, as had that of Chase, on 

1 Cutler, ii, 183. 

2 Annals, 8th Cong. 2d Sess. 329-53; Chase Trial, 107 et seq. 

3 Memoirs, J. Q. A.: Adams, i, 355-56. 

4 Plumer, Feb. 21, 1805, " Diary," Plumer MSS. Lib. Cong. 

5 Adams: U.S. n, 231. Even Randolph praised him. (Annals, 8th 
Cong. 2d Sess. 640.) 



IMPEACHMENT 199 

"a petty catalogue of frivolous occurrences, more 
calculated to excite ridicule than apprehension, bui. 
for the alleged murder of princes and plunder of 
empires"; yet Hastings had been acquitted. 

In England only two judges had been impeached 
in half a century, while in the United States "seven 
judges have been prosecuted criminally in about 
two years." Could a National judge be impeached 
merely for "error, mistake, or indiscretion"? Ab- 
surd ! Such action could be taken only for " an indict- 
able offense." Thus Hopkinson stated the master 
question of the case. In a clear, closely woven argu- 
ment, the youthful advocate maintained his ground. 

The power of impeachment by the House was 
not left entirely to the "opinion, whim, or caprice" 
of its members, but was limited by other provisions 
of the fundamental law. Chase was not charged 
with treason, bribery, or corruption. Had any other 
"high crimes and misdemeanors" been proved or 
even stated against him? He could not be im- 
peached for ordinary offenses, but only for "high 
crimes and high misdemeanors." Those were legal 
and technical terms, "well understood and defined 
in law. . . A misdemeanor or a crime . . is an ac. 
committed or omitted, in violation of a public law 
either forbidding or commanding it. By this test, let 
the respondent . . stand justified or condemned." 

The very nature of the Senatorial Court indicated 
"the grade of offenses intended for its jurisdiction. 
. . Was such a court created . . to scan and punish 
paltry errors and indiscretions, too insignificant to 
have a name in the penal code, too paltry for the 



200 JOHN MARSHALL 

notice of a court of quarter sessions? This is indeed 
employing an elephant to remove an atom too 
minute for the grasp of an insect." 

Had Chase transgressed any State or National 
statute? Had he violated the common law? No- 
body claimed that he had. Could any judge be 
firm, unbiased, and independent if he might at any 
\ime be impeached "on the mere suggestions of 
caprice . . condemned by the mere voice of preju- 
dice"? No! "If his nerves are of iron, they must 
tremble in so perilous a situation." 

Hopkinson dwelt upon the true function of the 
Judiciary under free institutions. "All governments 
require, in order to give them firmness, stability, and 
character, some permanent principle, some settled 
establishment. The want of this is the great defi- 
ciency in republican institutions." In the American 
Government an independent, permanent Judiciary 
supplied this vital need. Without it "nothing can 
be relied on; no faith can be given either at home or 
abroad." It was also "a security from oppression." 

All history proved that republics could be as 
tyrannical as despotisms ; not systematically, it was 
true, but as the result of "sudden gust of passion 
or prejudice. . . If we have read of the death of a 
Seneca under the ferocity of a Nero, we have read 
too of the murder of a Socrates under the delusion 
of a Republic. An independent and firm Judiciary, 
protected and protecting by the laws, would have 
snatched the one from the fury of a despot, and pre- 
served the other from the madness of a people." * So 

1 Annals, 8th Cong. 2d Sess. 354-94; Chase Trial, 116-49. 



IMPEACHMENT 201 

spoke Joseph Hopkinson for three hours, 1 made brief 
and brilliant by his eloquence, logic, and learning. 

Philip Barton Key of Washington, younger even 
than Hopkinson, next addressed the Senatorial 
Court. He had been ill the day before 2 and was 
still indisposed, but made an able speech. He an- 
alyzed, with painstaking minuteness, the complaints 
against his client, and cleverly turned to Chase's 
advantage the conduct of Marshall in the Logwood 
case. 3 Charles Lee then spoke for the defense; but 
what he said was so technical, applying merely to 
Virginia legal practice of the time, that it is of no 
historical moment. 4 

When, on the next day, February 23, Luther 
Martin rose, the Senate Chamber could not contain 
even a small part of the throng that sought the 
Capitol to hear the celebrated lawyer. If he "only 
appeared in defense of a friend," said Martin, he 
would not be so gravely concerned; but the case was 
plainly of highest possible importance, not only to 
all Americans then living, but to "posterity." It 
would "establish a most important precedent as to 
future cases of impeachment." An error now would 
be fatal. 

For what did the Constitution authorize the 

1 Feb. 21, 1805, Memoirs, J. Q. A.: Adams, i, 356. 

"The effect on the auditory [was] prodigiously great." (Cutler, 
II, 184.) 

"His argument . . was one of the most able . . I ever heard." 
(Plumer, Feb. 21, 1805, " Diary," Plumer MSS. Lib. Cong.) 

2 Feb. 22, 1805, Memoirs, J. Q. A.: Adams, i, 356. 

3 Annals, 8th Cong. 2d Sess. 394-413; see also Chase Trial, 149-62; 
and Cutler, n, 184. 

4 Annals, 8th Cong. 2d Sess. 413-29; Chase Trial, 162-72. 



202 JOHN MARSHALL 

House to impeach and the Senate to try an officer 
of the National Government? asked Martin. Only 
for "an indictable offense." Treason and bribery, 
specifically named in the Constitution as impeach- 
able offenses, were also indictable. It was the same 
with "other high crimes and misdemeanors," the 
only additional acts for which impeachment was 
provided. To be sure, a judge might do deeds for 
which he could be indicted that would not justify 
his impeachment, as, for instance, physical assault 
"provoked by insolence." But let the House man- 
agers name one act for which a judge could be im- 
peached that did not also subject him to indictment. 

Congress could pass a law making an act crimina 1 
which had not been so before; but such a law applied 
only to deeds committed after, and not to those 
done before, its passage. Yet if an officer might, 
years after the event, be impeached, convicted, and 
punished for conduct perfectly legal at the time, 
"could the officers of Government ever know how to 
proceed?" Establish such a principle and "you 
leave your judges, and all your other officers, at the 
mercy of the prevailing party." 

Had Chase "used unusual, rude and contemptuous 
expressions towards the prisoner's counsel" in the 
Callender case, as the articles of impeachment 
charged? Even so, this was "rather a violation of 
the principles of politeness, than the principles of 
law; rather the want of decorum, than the commis- 
sion of a high crime and misdemeanor" Was a judge 
to be impeached and removed from office because 
his deportment was not elegant? 



IMPEACHMENT 203 

The truth was that Calender's counsel had not 
acted in his interest and had cared nothing about 
him; they had wished only "to hold up the prose- 
cution as oppressive" in order to "excite public in- 
dignation against the court and the Government." 
Had not Hay just testified that he entertained "no 
hopes of convincing the court, and scarcely the 
faintest expectation of inducing the jury to believe 
that the sedition law was unconstitutional"; but 
that he had wished to make an "impression upon 
the public mind. . . What barefaced, what un- 
equalled hypocrisy doth he admit that he practiced 
on that occasion! What egregious trifling with the 
court!" exclaimed Martin. 

When Chase had observed that Wirt's syllogism 
was a "non sequitur,*' the Judge, it seems, had 
"bowed." Monstrous! But "as bows, sir, according 
to the manner they are made, may . . convey very 
different meanings," why had not the witness who 
told of it, "given us a/ac simile of it?" The Senate 
then could have judged of "the propriety" of the 
bow. "But it seems this bow, together with the 
'non sequitur 9 entirely discomfitted poor Mr. Wirt, 
and down he sat 'and never word spake more!" : 
By all means let Chase be convicted and removed 
from the bench — it would never do to permit Na- 
tional judges to make bows in any such manner! 

But alas for Chase! He had committed another 
grave offense — he had called William Wirt "young 
gentleman" in spite of the fact that Wirt was actu- 
ally thirty years old and a widower. Perhaps Chase 
did not know "of these circumstances"; still, "if 



204 JOHN MARSHALL 

he had, considering that Mr. Wirt was a widower, 
he certainly erred on the right side . . in calling him 
a young gentleman." 1 

When the laughter of the Senate had subsided, 
Martin, dropping his sarcasm, once more empha- 
sized the vital necessity of the independence of the 
Judiciary. "We boast" that ours is a "government 
of laws. But how can it be such, unless the laws, 
while they exist, are sacredly and impartially, with- 
out regard to popularity, carried into execution?" 
Only independent judges can do this. "Our prop- 
erty, our liberty, our lives, can only be protected 
and secured by such judges. With this honorable 
Court it remains, whether we shall have such 
judges!" 2 

Martin spoke until five o'clock without food or 
any sustenance, "except two glasses of wine and 
water"; he said he had not even breakfasted that 
morning, and asked permission to finish his argu- 
ment next day. 

When he resumed, he dwelt on the liberty of the 
press which Chase's application of the Sedition Law 
to Callender's libel was said to have violated. "My 
honorable client with many other respectable charac- 
ters . . considered it [that law] as a wholesome and 
necessary restraint" upon the licentiousness of the 
press. 3 Martin then quoted with telling effect from 
Franklin's denunciation of newspapers. 4 "Franklin, 
himself a printer," had been "as great an advocate 

1 Annals, 8th Cong. 2d Sess. 429-82; Chase Trial, 173 el seq. 

2 Annals, 8th Cong. 2d Sess. 483. 3 lb. 484-87. 

4 See r6sume of Franklin's indictment of the press in vol. i, 268- 
69, of this work. 



IMPEACHMENT 205 

for the liberty of the press, as any reasonable man 
ought to be"; yet he had "declared that unless the 
slander and calumny of the press is restrained by 
some other law, it will be restrained by club law." 
Was not that true? 

If men cannot be protected by the courts against 
"base calumniators, they will become their own 
avengers. And to the bludgeon, the sword or the 
pistol, they will resort for that purpose." Yet Chase 
stood impeached for having, as a judge, enforced 
the law against the author of "one of the most 
flagitious libels ever published in America." x 

Throughout his address Martin mingled humor 
with logic, eloquence with learning. 2 Granted, he 
said, that Chase had used the word "damned" in his 
desultory conversation with Triplett during their 
journey in a stage. "However it may sound else- 
where in the United States, I cannot apprehend it 
will be considered very offensive, even from the 
mouth of a judge on this side of the Susquehanna; — 
to the southward of that river it is in familiar use . . 
supplying frequently the place of the word 'very' 
. . connected with subjects the most pleasing; thus 
we say indiscriminately a very good or a damned 
good bottle of wine, a damned good dinner, or a 
damned clever fellow." 3 

Martin's great speech deeply impressed the 
Senate with the ideas that Chase was a wronged 

1 Annals, 8th Cong. 2d Sess. 488; Chase Trial, *223. 

2 "Mr. Martin really possesses much legal information & a great 
fund of good humour, keen satire & poignant wit . . he certainly has 
talents." (Plumer, Feb. 23, 1805, " Diary," Plumer MSS. Lib. Cong.) 

3 Annals, 8th Cong. 2d Sess. 489; Chase Trial, *224. 



206 JOHN MARSHALL 

man, that the integrity of the whole National Judi- 
cial establishment was in peril, and that impeach- 
ment was being used as a partisan method of placing 
the National Bench under the rod of a political 
party. And all this was true. 

Robert Goodloe Harper closed for the defense. 
He was intolerably verbose, but made a good argu- 
ment, well supported by precedents. In citing the 
example which Randolph had given as a good cause 
for impeachment — the refusal of a judge to hold 
court — Harper came near, however, making a 
fatal admission. This, said Harper, would justify 
impeachment, although perhaps not an indictment. 
Most of his speech was a repetition of points already 
made by Hopkinson, Key, and Martin. But Har- 
per's remarks on Chase's charge to the Baltimore 
grand jury were new, that article having been left 
to him. 

"Is it not lawful," he asked, "for an aged pa- 
triot of the Revolution to warn his fellow-citizens 
of dangers, by which he supposes their liberties 
and happiness to be threatened?" That was all 
that Chase's speech from the bench in Baltimore 
amounted to. Did his office take from a judge "the 
liberty of speech which belongs to every citizen"? 
Judges often made political speeches on the stump 
— "What law forbids [them] to exercise these 
rights by a charge from the bench?" That practice 
had "been sanctioned by the custom of this coun- 
try from the beginning of the Revolution to this 
day." 

Harper cited many instances of the delivery by 



IMPEACHMENT 207 

judges of political charges to grand juries, beginning 
with the famous appeal to the people to fight for 
independence from British rule, made in a charge to 
a South Carolina grand jury in 1776. * 

The blows of Chase's strong counsel, falling in 
unbroken succession, had shaken the nerve of the 
House managers. One of these, Joseph H. Nichol- 
son of Maryland, now replied. Posterity would in- 
deed be the final judge of Samuel Chase. Warren 
Hastings had been acquitted; "but is there any who 
hears me, that believes he was innocent?" The 
judgment of the Senate involved infinitely more 
than the fortunes of Chase; by it "must ultimately 
be determined whether justice shall hereafter be 
impartially administered or whether the rights of 
the citizen are to be prostrated at the feet of over- 
bearing and tyrannical judges." 

Nicholson denied that the House managers had 
"resorted to the forlorn hope of contending that an 
impeachment was not a criminal prosecution, but 
a mere inquest of office. . . If declarations of this 
kind have been made, in the name of the Managers, 
I here disclaim them. We do contend that this is a 
criminal prosecution, for offenses committed in the 
discharge of high official duties." 2 

The Senate was dumbfounded, the friends of Chase 
startled with joyful surprise; a gasp of amazement 
ran through the overcrowded Chamber! Nicholson 
had abandoned the Republican position — and at a 
moment when Harper had all but admitted it to be 

1 Annals, 8th Cong. 2d Sess. 556; Chase Trial *205-44. 

2 Annals, 8th Cong. 2d Sess. 500-62; Chase Trial, 237 et seq. 



208 JOHN MARSHALL 

sound. What could this mean but that the mighty 
onslaughts of Martin and Hopkinson had discon- 
certed the managers, or that Republican Senators 
were showing to the leaders signs of weakening in 
support of the party doctrine. 

At any rate, Nicholson's admission was an irre- 
trievable blunder. He should have stoutly cham- 
pioned his party's theory upon which Chase had 
been impeached and thus far tried, ignored the 
subject entirely, or remained silent. Sadly con- 
fused, he finally reversed his argument and swung 
back to the original Republican theory. 

He cited many hypothetical cases where an officer 
could not be haled before a criminal court, but could 
be impeached. One of these must have furnished 
cause for secret mirth to many a Senator: "It is pos- 
sible," said Nicholson, "that the day may arrive 
when a President of the United States . . may en- 
deavor to influence [Congress] by holding out threats 
or inducements to them. . . The hope of an office 
may be held out to a Senator; and I think it cannot 
be doubted, that for this the President would be 
liable to impeachment, although there is no positive 
law forbidding it." 

Lucky for Nicholson that Martin had spoken be- 
fore him and could not reply; fortunate for Jeffer- 
son that the "impudent Federal Bulldog," l as the 
President afterward styled Martin, could not now be 
heard. For his words would have burned the paper 
on which the reporters transcribed them. Every 
Senator knew how patronage and all forms of 

1 See Jefferson to Hay, infra, chap. viii. 



IMPEACHMENT 209 

Executive inducement and coercion had been used 
by the Administration in the passage of most im- 
portant measures — the Judiciary repeal, the Pick- 
ering impeachment, the Yazoo compromise, the 
trial of Chase. From the floor of the House John 
Randolph had just denounced, with blazing wrath, 
Jefferson's Postmaster-General for offering Govern- 
ment contracts to secure votes for the Yazoo com- 
promise. 1 

For two hours and a half Nicholson continued, 2 
devoting himself mainly to the conduct of Chase 
during the trial of Fries. He closed by pointing out 
the inducements to a National judge to act as a 
tyrannical tool of a partisan administration — the 
offices with which he could be bribed, the promo- 
tions by which he could be rewarded. The influence 
of the British Ministry over the judges has been "too 
flagrant to be mistaken." For example, in Ireland 
" an overruling influence has crumbled [an independ- 
ent judiciary] into ruins. The demon of destruction 
has entered their courts of justice, and spread desola- 
tion over the land. Execution has followed execution, 
until the oppressed, degraded and insulted nation 
has been made to tremble through every nerve, and 
to bleed at every pore." 

The fate of Ireland would be that of America, if 
an uncontrolled Judiciary were allowed to carry out, 
without fear of impeachment, the will of a high- 
handed President, in order to win the preferments 
he had to offer. Already "some of our judges have 

1 See infra, chap. x. 

2 Memoirs, J. Q. A.: Adams, i, 358. 



210 JOHN MARSHALL 

been elevated to places of high political impor- 
tance. . . Let us nip the evil in the bud, or it may 
grow to an enormous tree> bearing destruction upon 
every branch." x 

Csesar A. Rodney of Delaware strove to repair 
the havoc Nicholson had wrought; he made it worse. 
The trial was, he said, "a spectacle truly solemn and 
impressive . . a trial of the first importance, because 
of the first impression; . . a trial . . whose novelty 
and magnitude have excited so much interest . . that 
it seems to have superseded for the moment, not only 
every other grave object or pursuit, but every other 
fashionable amusement or dissipation." 2 

Rodney flattered Burr, whose conduct of the 
trial had been "an example worthy of imitation." 
He cajoled the Senators, whose attitude he had "ob- 
served with heartfelt pleasure and honest pride"; 
and he warned them not to take as a precedent 
the case of Warren Hastings, "that destroyer of the 
people of Asia, that devastator of the East," — 
murderer of men, violator of zenanas, destroyer of 
sacred treaties, but yet acquitted by the British 
House of Lords. 

Counsel for Chase had spoken with " the fascinat- 
ing voice of eloquence and the deluding tongue of 
ingenuity"; but Rodney would avoid "everything 

1 Annals, 8th Cong. 2d Sess. 582; Chase Trial, 237-43. 

2 Annals, 8th Cong. 2d Sess. 583. 

This was an under-statement of the facts; for the first time the cele- 
bration of Washington's birthday was abandoned in the National 
Capital. (Plumer, 326.) Plumer says that this was done because the 
celebration might hurt Chase, " for there are senators who for the veri- 
est trifles may be brought to vote against him." (Feb. 22, 1805, " Con- 
gress," Plumer MSS. Lib. Cong.) 



IMPEACHMENT 211 

like declamation" and speak "in the temperate lan- 
guage of reason." 1 He was sure that "the weeping 
voice of history will be heard to deplore the oppres- 
sive acts and criminal excesses [of Samuel Chase]. . . 
In the dark catalogue of criminal enormities, perhaps 
few are to be found of deeper dye" than those named 
in the articles of impeachment. "The independence 
of the Judiciary, the political tocsin of the day, and 
the alarm bell of the night, has been rung through 
every change in our ears. . . The poor hobby has 
been literally rode to death." Rodney was for 
a "rational independence of the Judiciary," but 
not for the "inviolability of judges more than of 
Kings. 2 In this country I am afraid the doctrine 
has been carried to such an extravagant length, 
that the Judiciary may be considered like a spoiled 
child." 

An independent Judiciary, indeed! "We all know 
that an associate justice may sigh for promotion, 
and may be created a Chief Justice, 3 while . . more 
than one Chief Justice has been appointed a Min- 
ister Plenipotentiary." 4 With what result? Had 
judges stood aloof from politics — or had they 
"united in the Io triumphe which the votaries and 
idolators of power have sung to those who were 
seated in the car of Government? Have they made 
no offerings at the shrine of party; have they not 

1 Annals, 8th Cong. 2d Sess. 583-84; Chase Trial, 243-56. 

2 Annals, 8th Cong. 2d Sess. 585-87. 

3 Rodney here refers to the Republican allegation that Chase tried 
to secure appointment as Chief Justice by flattering Adams through 
charges to juries, rulings in court, and speeches on the stump. 

4 John Jay to England and Oliver Ellsworth to France. (See voL 
n, 113, 502, of this work.) 



212 JOHN MARSHALL 

preached political sermons from the bench, in which 
they have joined chorus with the anonymous scrib- 
blers of the day and the infuriate instruments of 
faction?" 1 

In this fashion Rodney began a song of praise of 
Jefferson, for the beneficence of whose Administra- 
tion "the lamentable annals of mankind afford no 
example." After passing through many "citadels" 
and "Scean gates," and other forms of rhetorical 
architecture, he finally discovered Chase "seated 
in a curricle of passion" which the Justice had 
"driven on, Phaeton-like, . . with destruction, per- 
secution, and oppression" following. 

At last the orator attempted to discuss the law of 
the impeachment, taking the double ground that 
an officer could be removed for any act that two 
thirds of the Senate believed to be not "good be- 
havior," and that the Chase impeachment was "a 
criminal prosecution." For parts of two days 2 
Rodney examined every phase of the charges in a 
distracting mixture of high-flown language, scat- 
tered learning, extravagant metaphor, and jumbled 
logic. 3 His speech was a wretched performance, so 
cluttered with tawdry rhetoric and disjointed argu- 
ment that it would have been poor even as a stump 
speech. 

In an address that enraged the New England 
Federalists, Randolph closed for the House mana- 
gers. 4 He was late in arriving at the Senate Cham- 

1 Annals, 8th Cong. 2d Sess. 587-89. 

2 Memoirs, J. Q. A.: Adams, i, 359. 

3 Annals, 8th Cong. 2d Sess. 583-641 ; Chase Trial, 243-56. 

4 Cutler announced it as "an outrageous, infuriated declamation, 



IMPEACHMENT 213 

ber. He had been so ill the day before that Nichol- 
son, because of Randolph's "habitual indisposi- 
tion," had asked the Senate to meet two hours later 
than the usual time. 1 Sick as he was, without his 
notes (which he had lost), Randolph nevertheless 
made the best argument for the prosecution. Wast- 
ing no time, he took up the theory of impeachment 
upon which, he said, "the wildest opinions have 
been advanced" — for instance, "that an offense, 
to be impeachable, must be indictable." Why, 
then, had the article on impeachment been placed 
in the Constitution at all? Why "not have said, 
at once, that any . . officer . . convicted on indict- 
ment should (ipso facto) be removed from office? 
This would be coming at the thing by a short and 
obvious way." 2 

Suppose a President should veto every act of 
Congress "indiscriminately"; it was his Constitu- 
tional right to do so; he could not be indicted, but 
would anybody say he could not be impeached? Or 
if, at a short session, the President should keep back 
until the last moment all bills passed within the pre- 
vious ten days, as the Constitution authorized him 
to do, so that it would be a physical impossibility 
for the two Houses to pass the rejected measures 
over the President's veto, he could not be indicted 
for this abuse of power; but surely "he could be 
impeached, removed and disqualified." 3 

which might have done honor to Marat, or Robespierre." (Cutler, 
ii, 184.) 

1 Memoirs, J. Q. A.: Adams, i, S59. 

2 Annals, 8th Cong. 2d Sess. 642; Chase Trial, 256. 

3 Annals, 8th Cong. 2d Sess. 644; Chase Trial, 257. 



214 JOHN MARSHALL 

Randolph's Virginia soul was deeply stirred by 
what he considered Chase's alternate effrontery 
and cowardice. Is such a character "fit to preside 
in a court of justice? . . Today, haughty, violent, 
imperious; tomorrow, humble, penitent and sub- 
missive. . . Is this a character to dispense law and 
justice to this nation? No, Sir!" Randolph then 
drew an admirable picture of the ideal judge: "firm, 
indeed, but temperate, mild though unyielding, 
neither a blustering bravo, nor a timid poltroon." l 

As far as he could go without naming him, Ran- 
dolph described John Marshall. Not without result 
had the politically experienced Chief Justice concili- 
ated the House managers in the manner that had so 
exasperated the Federalist Senators. He would not 
thereafter be impeached if John Randolph could 
prevent. 

With keen pleasure at the annoyance he knew 
his words would give to Jefferson, 2 Randolph con- 
tinued to praise Marshall. The rejection of Colonel 
Taylor's testimony at the Callender trial was con- 
trary to "the universal practice of our courts." 
On this point "what said the Chief Justice of the 
United States,' on whose evidence Randolph said 
he specially relied? "He never knew such a case [to] 
occur before. He never heard a similar objection 
advanced by any court, until that instance. And 
this is the cautious and guarded language of a man 
placed in the delicate situation of being compelled 
to give testimony against a brother judge." 

1 Annals, 8th Cong. 2d Sess. 644-45; Chase Trial, 258. 

2 See infra, chap. x. 



IMPEACHMENT 215 

With an air of triumph Randolph asked: "Can 
anyone doubt Mr. Marshall's thorough acquaintance 
with our laws? Can it be pretended that any man 
is better versed in their theory and practice? And 
yet in all his extensive reading, his long and exten- 
sive practice, in the many trials of which he has been 
spectator, and the yet greater number at which he 
has assisted, he had never witnessed such a case." 
Chase alone had discovered " this fatal novelty, this 
new and horrible doctrine that threatens at one 
blow all that is valuable in our criminal jurispru- 
dence." 

Had Martin shown that Chase was right in requir- 
ing questions to be reduced to writing? "Here 
again," declared Randolph, "I bottom myself upon 
the testimony of the same great man, yet more illus- 
trious for his abilities than for the high station that 
he fills, eminent as it is." And he recited the sub- 
stance of Marshall's testimony on this point. Con- 
sider his description of the bearing of Chase toward 
counsel! "I again ask you, what said the Chief 
Justice? . c And what did he look? l He felt all the 
delicacy of his situation, and, as he could not ap- 
prove, he declined giving any opinion on the de- 
meanor of his associate." 2 In such manner Randolph 
extolled Marshall. 

Again he apostrophized the Chief Justice. If Fries 
and Callender "had had fair trials, our lips would 
have been closed in eternal silence. Look at the case 
of Logwood: The able and excellent judge whose 

1 See supra, 196. 

1 Annals, 8th Cong. 2d Sess. 651-52; Chase Trial, 266. 



216 JOHN MARSHALL 

worth was never fully known until he was raised to 
the bench . . uttered not one syllable that could 
prejudice the defense of the prisoner." Once more 
he contrasted the judicial manners and rulings of 
Marshall with those of Chase: "The Chief Justice 
knew that, sooner or later, the law was an over- 
match for the dishonest, and . . he disdained to 
descend from his great elevation to the low level of 
a public prosecutor." 

The sick man spoke for two hours and a half, his 
face often distorted and his body writhing with pain. 
Finally his tense nerves gave way. Only public duty 
had kept him to his task, he said, "In a little time 
and I will dismiss you to the suggestions of your 
own consciences. My weakness and want of ability 
prevent me from urging my cause as I could wish, 
but" — here the overwrought and exhausted man 
broke into tears — "it is the last day of my suffer- 
ings and of yours." 

Mastering his indisposition, however, Randolph 
closed in a passage of genuine power: "We adjure 
you, on behalf of the House of Representatives and 
of all the people of the United States, to exorcise 
from our Courts the baleful spirit of party, to give 
an awful memento to our judges. In the name of the 
nation, I demand at your hands the award of justice 
and of law." * 

1 Annals, 8th Cong. 2d Sess. 641-62. John Quincy Adams notes 
in his diary that Randolph spoke for more than two hours "with as 
little relation to the subject matter as possible — without order, con- 
nection, or argument; consisting altogether of the most hackneyed 
commonplaces of popular declamation." Throughout, records Adams, 
there was "much distortion of face and contortion of body, tears, 
groans and sobs." (Memoirs, J. Q. A.: Adams, i, 359.) 



IMPEACHMENT 217 

So ended this unequal forensic contest in one of 
the most fateful trials in American history. The 
whole country eagerly awaited tidings of the judg- 
ment to be rendered by the Senatorial tribunal. The 
fate of the Supreme Court, the character of the 
National Judiciary, the career of John Marshall, 
depended upon it. Even union or disunion was 
involved; for if Chase should be convicted, another 
and perhaps final impulse would be given to the 
secessionist movement in New England, which had 
been growing since the Republican attack on the 
National Judiciary in 1802. * 

When the Senate convened at half -past twelve on 
March 1, 1805, a dense mass of auditors filled every 
inch of space in the Senate Chamber. 2 Down the 
narrow passageway men were seen bearing a couch 
on which lay Senator Uriah Tracy of Connecticut, 
pale and sunken from sickness. Feebly he rose and 
took one of the red-covered seats of the Senatorial 
judges. 3 

"The Sergeants-at-Arms will face the spectators 
and seize and commit to prison the first person who 



"His speech . . was devoid of argument, method or consistency — 
but was replete with invective & even vulgarity. . . I never heard him 
deliver such a weak feeble & deranged harangue." (Plumer to his 
wife, Feb. 28, 1805, Plumer MSS. Lib. Cong.) 

"After he sat down — he threw his feet upon the table — distorted 
his features & assumed an appearance as disgusting as his harangue." 
(Plumer, Feb. 27, 1805, " Diary," Plumer MSS. Lib. Cong.) 

1 See supra, chaps, n and in; infra, chap* vi, and vol. iv, chap. i. 

2 "There was a vast concourse of people . . and great solemnity." 
(Cutler to Torrey, March 1, 1805, Cutler, n, 193.) "The galleries 
were crowded — many ladies. I never witnessed so general & so deep an 
anxiety." (Plumer to his wife, March 1, 1805, Plumer MSS. Lib. Cong.) 

3 Plumer, 323. 



218 JOHN MARSHALL 

makes the smallest noise or disturbance," sternly 
ordered Aaron Burr. 

"The secretary will read the first article of im- 
peachment," he directed. 

"Senator Adams of Massachusetts! How say 
you? Is Samuel Chase, the respondent, guilty of 
high crimes and misdemeanors as charged in the 
article just read?" 

"Not guilty!" responded John Quincy Adams. 

When the name of Stephen R. Bradley, Republi- 
can Senator from Vermont, was reached, he rose in 
his place and voted against conviction. The audi- 
tors were breathless, the Chamber filled with the 
atmosphere of suspense. It was the first open break 
in the Republican ranks. Two more such votes and 
the carefully planned battle would be lost to Jeffer- 
son and his party. 

"Not guilty!" answered John Gaillard, Republi- 
can Senator from South Carolina. 

Another Republican defection and all would be 
over. It came from the very next Senator whose 
name Aaron Burr pronounced, and from one whose 
answer will forever remain an enigma. 

"Senator Giles of Virginia! How say you? Is 
Samuel Chase guilty of the high crimes and misde- 
meanors as charged in the articles just read?" 

"Not guilty!" 

Only sixteen Senators voted to impeach on the 
first article, nine Republicans aligning themselves 
with the nine Federalists. 

The vote on the other articles showed varying 
results; on the fourth, fourteen Senators responded 



IMPEACHMENT 219 

"Guilty!"; on the fifth, the Senate was unanimous 
for Chase. 

Upon the eighth article — Chase's political charge 
to the Baltimore grand jury — the desperate Repub> 
licans tried to recover, Giles now leading them. 
Indeed, it may be for this that he cast his first vote 
with his party brethren from the North — he may 
have thought thus to influence them on the one 
really strong charge against the accused Justice. 
If so, his stratagem was futile. The five Northern 
Republicans (Bradley and Smith of Vermont, 
Mitchell and Smith of New York, and John Smith 
of Ohio) stood firm for acquittal as did the obsti- 
nate John Gaillard of South Carolina. 1 

The punctilious Burr ordered the names of Sen- 
ators and their recorded answers to be read for 
verification. 2 He then announced the result: "It 
appears that there is not a constitutional majority 
of votes finding Samuel Chase, Esq. guilty of any 
one article. It therefore becomes my duty to declare 
that Samuel Chase, Esq. stands acquitted of all the 
articles exhibited by the House of Representatives 
against him." 3 

The fight was over. There were thirty -four Sena- 
tors, nine of them Federalists, twenty-five Republi- 

1 Annals, 8th Cong. 2d Sess. 665-69; Memoirs, J. Q. A. : Adams, 
i, 362-63. 2 lb. 363. 

3 Annals, 8th Cong. 2d Sess. 669. By this time Burr had changed 
to admiration the disapproval with which the Federalist Senators 
had, at first, regarded his conduct of the trial. "Mr. Burr has cer- 
tainly, on the whole, done himself, the Senate, and the Nation honor 
by the dignified manner in which he has presided over this high and 
numerous court," testifies Senator Plumer, notwithstanding his deep 
prejudice against Burr. (Plumer, March 1, 1805, "Diary," Plumer 
MSS. Lib. Cong.) 



220 JOHN MARSHALL 

cans. Twenty-two votes were necessary to convict. 
At their strongest the Republicans had been able to 
muster less than four fifths of their entire strength. 
Six of their number — the New York and Vermont 
Senators, together with John Gaillard of South Caro- 
lina and John Smith of Ohio — had answered "not 
guilty" on every article. 

For the first time since his appointment, John 
Marshall was secure as the head of the Supreme 
Bench. 1 For the first time since Jefferson's election, 
the National Judiciary was, for a period, rendered 
independent. For the first time in five years, the 
Federalist members of the Nation's highest tribunal 
could go about their duties without fear that upon 
them would fall the avenging blade of impeachment 
which had for half a decade hung over them. One 
of the few really great crises in American history 
had passed. 2 

"The greatest and most important trial ever held 
in this nation has terminated justly," wrote Senator 
Plumer to his son. "The venerable judge whose 
head bears the frost of seventy winters, 3 is honora- 
bly acquitted. I never witnessed, in any place, such 
a display of learning as the counsel for the accused 
exhibited." 4 

Chagrin, anger, humiliation, raged in Randolph's 
heart. His long legs could not stride as fast as his 

1 See Adams: U.S. n, 243. 

2 See Plumer, 324; Memoirs, J. Q. A. : Adams, I, 371; Adams: 
John Randolph, 131-32, 152; Charming: Jeff. System, 120; Adams: 
U.S. ii, 243. 

3 Plumer here adds six years to Chase's age — an unusual inaccu* 
racy in the diary of that born newspaper reporter. 

4 Plumer to his son, March 3, 1805, Plumer, 325. 



IMPEACHMENT 221 

frenzy, when, rushing from the scene of defeat, he 
flew to the floor of the House. There he offered an 
amendment to the Constitution providing that the 
President might remove National judges on the 
joint address of both Houses of Congress. 1 "Tem- 
pest in the House," records Cutler. 2 

Nicholson was almost as frantic with wrath, and 
quickly followed with a proposal so to amend the 
Constitution that State Legislatures might, at will, 
recall Senators. 3 

Republicans now began to complain to their party 
foes of one another. Over a "rubber of whist" with 
John Quincy Adams, Senator Jackson of Georgia, 
even before the trial, had spoken "slightingly both 
of Mr. John Randolph and of Mr. Nicholson"; 4 and 
this criticism of Republicans inter se now increased. 

Jefferson's feelings were balanced between grief 
and glee; his mourning over the untoward result of 
his cherished programme of judicial reform was 
ameliorated by his pleasure at the overthrow of the 
unruly Randolph, 5 who had presumed to dissent from 
the President's Georgia land policy. 6 The great 
politician's cup of disappointment, which the ac- 
quittal of Chase had filled, was also sweetened by 
the knowledge that Republican restlessness in the 
Northern States would be quieted; the Federalists 
who were ready, on other grounds, to come to his 

1 Annals, 8th Cong. 2d Sess. 1213; and see Annual Report, Am. 
Hist. Assn. 1896, n, 64; also Adams: U.S. n, 240. 

2 Cutler, ii, 185. 

3 Annals, 8th Cong. 2d Sess. 1213; and see J. Q. Adams to his 
father, March 14, 1805, Writings, J. Q. A.: Ford, m, 117. 

4 Jan. 30, 1805, Memoirs, J. Q. A.: Adams, I, 341. 

6 See Adams: U.S. ii, 243. 6 See infra, chap. x. 



222 JOHN MARSHALL 

standard would be encouraged to do so; and the 
New England secession propaganda would be de- 
prived of a strong argument. He confided to the 
gossipy William Plumer, the Federalist New Hamp- 
shire Senator, that "impeachment is a farce which 
will not be tried again." x 

The Chief Justice of the United States, his peril 
over, was silent and again serene, his wonted com- 
posure returned, his courage restored. He calmly 
awaited the hour when the wisdom of events should 
call upon him to render another and immortal serv- 
ice to the American Nation. That hour was not to 
be long delayed. 

1 Plumer, 325. Jefferson soon took Plumer into the Republican 
fold 



CHAPTER V 

BIOGRAPHER 

Marshall has written libels on one side. (Jefferson.) 

What seemed to him to pass for dignity, will, by his reader, be pronounced 
dullness. (Edinburgh Review.) 

That work was hurried into the world with too much precipitation. It is one 
of the most desirable object* 1 have in this life to publish a corrected edition. 

(Marshall.) 

Although the collapse of the Chase impeachment 
made it certain that Marshall would not be removed 
from office, and he was thus relieved from one source 
of sharp anxiety, two other causes of worry served 
to make this period of his life harried and laborious. 
His heavy indebtedness to Denny Fairfax * continu- 
ously troubled him; and, worse still for his peace 
of mind, he was experiencing the agonies of the 
literary composer temperamentally unfitted for the 
task, wholly unskilled in the art, and dealing with a 
subject sure to arouse the resentment of Jefferson 
and all his followers. Marshall was writing the 
"Life of Washington." 

In a sense it is fortunate for us that he did so, since 
his long and tiresome letters to his publishers afford 
us an intimate view of the great Chief Justice and 
reveal him as very human. But the biography itself 
was to prove the least /Satisfactory of all the labors 
of Marshall's life. 

Not long after the death of Washington, his 
nephew, Bushrod Washington, had induced Marshall 

1 See vol. II, 210-12, of this work. 



224 JOHN MARSHALL 

to become the biographer of "the Father of his 
Country." Washington's public and private papers 
were in the possession of his nephew. Although it 
was advertised that these priceless original materi- 
als were to be used in this work exclusively, many 
of Washington's writings had already been used by 
other authors. 

Marshall needed little urging to undertake this 
monumental labor. Totally unfamiliar with the 
exhausting toil required of the historian, he deemed 
it no great matter to write the achievements of his 
idolized leader. Moreover, he was in pressing need 
of money with which to pay the remaining $31,500 l 
which his brother and he still owed on the Fairfax 
purchase, as well as the smaller but yet annoying 
sum due their brother-in-law, Rawleigh Colston, for 
his share of the estate which the Marshall brothers 
had bought of him. 2 To discharge these obligations, 
Marshall had nothing but his salary and the income 
from his lands, which were wholly insufficient to 
meet the demands upon him. Some of his planta- 
tions, in fact, were "productive only of expense & 
vexation." 3 

Marshall and Bushrod Washington made ex- 
travagant estimates of the prospective sales of the 
biography and of the money they would receive. 
Everybody, they thought, would be eager to buy the 
true story of the life of America's "hero and sage." 
Perhaps the multitude could not afford volumes so 
expensive as those Marshall was to write, but there 

1 See infra; also vol. n, 211, of this work. 

2 Marshall to James M. Marshall, April 1, 1804, MS. 

3 Marshall to Peters, Oct. 12, 1815, Peters MSS. Pa Hist. Soc. 



BIOGRAPHER 225 

would be tens of thousands of prosperous Federal- 
ists who could be depended upon to purchase at 
a generous price a definitive biography of George 
Washington. 1 

Nor was the color taken from these rosy ex- 
pectations by the enthusiasm of those who wished 
to publish the biography. When it became known 
that the book was to be produced, many printers 
applied to Bushrod Washington "to purchase the 
copyright," 2 among them C. P. Wayne, a successful 
publisher of Philadelphia, who made two proposi- 
tions to bring out the work. After a consultation 
with Marshall, Bushrod Washington wrote Wayne: 
"Being ignorant of such matters . . we shall there- 
fore decline any negotiation upon the subject for 
the present." 3 

After nearly two years of negotiation, Marshall 
and his associate decided that the biography would 
require four or five volumes, and arrived at the 
modest opinion that there would be "30,000 sub- 
scribers in America. . . Less than a dollar a volume 
cannot be thought of," and this price should yield 
to the author and his partner "$150,000, supposing 
there to be five volumes. This . . would content us, 
whilst it would leave a very large profit" to the 
publisher. But, since the number of subscribers 
could not be foretold with exactness, Marshall and 
Bushrod Washington decided to "consent to receive 

1 Several persons were ambitious to write the life of Washington. 
David Ramsay and Mason Locke Weems had already done so. Noah 
Webster was especially keen to undertake the task, and it was unfor- 
tunate that he was not chosen to do it. 

2 Washington to Wayne, April 11, 1800, Dreer MSS. Pa. Hist. Soc. 

3 76. 



W6 JOHN MARSHALL 

$100,000 for the copyright in the United States"; 
and they sternly announced that, "less than this sum 
we will not take." l 

Wayne sought to reduce the optimism of Mar- 
shall and Washington by informing them that "the 
greatest number of subscribers ever obtained for 
any one publication in this country was . . 2000 and 
the highest sum ever paid in for the copyright of 
any one work . . was 30,000 Dollars." Wayne thinks 
that Marshall's work may sell better, but is sure 
that more than ten thousand sets cannot be disposed 
of for many years. He gives warning that, if the 
biography should contain anything objectionable 
to the British Government, the sale of it would be 
prevented in England, as was the case with David 
Ramsay's "History of the Revolution." 2 

Marshall and Washington also "rec d propositions 
for the purchase of the right to sell in G l - Britain," 
and so informed Wayne, calling upon him to "say 
so" if he wished to acquire British, as well as Ameri- 
can rights, "knowing the grounds upon which we 
calculate the value in the United States." 3 

So we find Marshall counting on fifty thousand 
dollars 4 at the very least from his adventure in the 
field of letters. His financial reckoning was expan- 
sive; but his idea of the time within which he could 
write so important a history was grotesque. At first 

1 Bushrod Washington to Wayne, Dec. 11, 1801, Dreer MSS. 
loc. cit. 

2 Wayne to Bushrod Washington, Dec. 10, 1801, Dreer MSS. 
loc. cit. 

3 Bushrod Washington to Wayne, Dec. 11, 1801, Dreer MSS. 
loc. cit. 

4 The division was to be equal between Marshall and Washington. 



BIOGRAPHER 227 

he counted on producing "4 or 5 volumes in octavos 
of from 4 to 500 pages each" in less than one year, 
provided "the present order of the Courts be not 
disturbed or very materially changed." * 

It thus appears that Marshall expected the Fed- 
eralist Judiciary Act of 1801 to stand; that he would 
not be called upon to ride the long, tiresome, time- 
consuming Southern circuit ; and that, with no great 
number of cases to be disposed of by the Supreme 
Court, he would have plenty of leisure to write 
several large volumes of history in a single year. 

But the Republican repeal of the act gave the 
disgusted Chief Justice "duties to perform," as John 
Randolph expressed it. Marshall was forthwith sent 
upon his circuit riding, and his fondly anticipated 
relief from official labors vanished. Although he had 
engaged to write the biography during the winter 
following Washington's death, not one line of it had 
he penned at the time the contract for publication 
was made in the autumn of 1802. He had, of course, 
done some reading of the various histories of the 
period ; but he had not even begun the examination 
of Washington's papers, the subsequent study of 
which proved so irksome to him. 

After almost two years of bartering, a contract 
was made with Wayne to print and sell the biogra- 
phy. This agreement, executed September 22, 1802, 
gave to the publisher the copyright in the United 
States and all rights of the authors "in any part of 
North and South America and in the West India 

1 Bushrod Washington to Wayne, Dec. 11, 1801, Dreer MSS. 
loc. cit. 



228 JOHN MARSHALL 

Islands." The probable extent of the work was to 
be "four or five volumes in Octavo, from four to five 
hundred pages" each; and it was "supposed" that 
these would "be compleated in less than two years" 
— Marshall's original estimate of time having now 
been doubled. 

Wayne engaged to pay "one dollar for every vol- 
ume of the aforesaid work which may be subscribed 
for or which may be sold and paid for." It was 
further covenanted that the publisher should "not 
demand" of the public "a higher price than three 
dollars per volume in boards." x This disappointed 
Marshall, who had insisted that the volumes must 
be sold for four dollars each, a price which Wayne 
declared the people would not pay. 2 

It would seem that for a long time Marshall tried 
to conceal the fact that he was to be the author; 
and, when the first volume was about to be issued, 
strenuously objected to the use of his name on the 
title-page. However, Jefferson soon got wind of the 
project. The alert politician took swift alarm and 
promptly suggested measures to counteract the polit- 
ical poison with which he was sure Marshall's pen 
would infect public opinion. He consulted Madison, 
and the two picked out the brilliant and versatile 
Joel Barlow, then living in Paris, as the best man to 
offset the evil labor in which Marshall was engaged. 

1 "Articles of Agreement" between C. P. Wayne and Bushrod 
Washington, Sept. 22, 1802. (Dreer MSS. loc. cit.) Marshall's name 
does not appear in the contract, Washington having attended to 
all purely business details of the transaction. 

2 Wayne to Bushrod Washington, May 16, 1802, Dreer MSS. 
loc. cit. 



BIOGRAPHER 229 

"Mr. Madison and myself have cut out a piece 
of work for you," Jefferson wrote Barlow, "which is 
to write the history of the United States, from the 
close of the War downwards. We are rich ourselves 
in materials, and can open all the public archives to 
you; but your residence here is essential, because a 
great deal of the knowledge of things is not on paper, 
but only within ourselves for verbal communica- 
tion." 

Then Jefferson states the reason for the "piece 
of work" which he and Madison had "cut out" for 
Barlow: "John Marshall is writing the life of Gen. 
Washington from his papers. It is intended to come 
out just in time to influence the next presidential 
election." The imagination of the party manager 
pictured Marshall's work as nothing but a political 
pamphlet. "It is written therefore," Jefferson con- 
tinues, "principally with a view to electioneering 
purposes; but it will consequently be out in time to 
aid you with information as well as to point out the 
perversions of truth necessary to be rectified." * 

Thus Marshall's book was condemned before a 
word of it had been written, and many months be- 
fore the contract with Wayne was signed — a cir- 
cumstance that was seriously to interfere with sub- 
scriptions to the biography. Jefferson's abnormal 
sensitiveness to even moderate criticism finally led 
him to the preparation of the most interesting and 
untrustworthy of all his voluminous papers, as a 
reply to Marshall's "Washington." 2 

1 Jefferson to Barlow, May 3, 1802, Works: Ford, ix, 372. 

2 The " Anas," Works : Ford, 1, 163-430, see infra. The " Anas " was 



230 JOHN MARSHALL 

News was sent to Republicans all over the country 
that Marshall's book was to be an attack upon their 
party. Wayne tells Marshall and Washington of the 
danger, but Washington testily assures the nervous 
publisher that he need have no fear: "The democrats 
may say what they please and I have expected they 
would say a great deal, but this is at least not in- 
tended to be a party work nor will any candid man 
have cause to make this charge." 1 

The contract signed, Wayne quickly put in mo- 
tion the machinery to procure subscribers. Of this 
mechanism, the most important part should have 
been the postmasters, of whom Wayne expected to 
make profitable use. There were twelve hundred of 
them, "each acquainted with all the gentlemen 
of their respective neighborhoods . . and their neigh- 
bors would subscribe at request, when they would 
not to a stranger. . . All letters to and from these 
men go free of postage," Wayne advised Marshall, 
while assuring the anxious author that "every Post 
Master in the United States holds a subscription 
paper." 2 But, thanks to Jefferson, the postmasters 
were to prove poor salesmen of the product of 
Marshall's pen. 

Other solicitors, however, were also put to work: 

Jefferson's posthumous defense. It was arranged for publication as 
early as 1818, but was not given to the public until after his death. It 
first appeared in the edition of Jefferson's works edited by his grand- 
son, Thomas Jefferson Randolph. " It is the most precious melange 
of all sorts of scandals you ever read." (Story to Fay, Feb. 5, 1830, 
Story, ii, 33.) 

1 Bushrod Washington to Wayne, Nov. 19, 1802, Dreer MSS. 
loc. cit. 

2 Wayne to Marshall, Feb. 17, 1803, Dreer MSS. loc. cit. 



BIOGRAPHER 231 

among them the picturesque Mason Locke Weems, 
part Whitefield, part Villon, a delightful mingling 
of evangelist and vagabond, lecturer and politician, 
writer and musician. 1 Weems had himself written a 
"Life of Washington" which had already sold ex- 
tensively among the common people. 2 He had long 

1 Weems is one of the most entertaining characters in American 
history. He was born in Maryland, and was one of a family of nine- 
teen children. He was educated in London as a physician, but aban- 
doned medicine for the Church, and served for several years as rector 
of two or three little Episcopal churches in Maryland and ministered 
occasionally at Pohick Church, in Truro Parish (sometimes called 
Mount Vernon Parish), Virginia. In this devout occupation he could 
not earn enough to support his very large family. So he became a 
professional book agent — the greatest, perhaps, of that useful fra- 
ternity. 

On horseback he went wherever it seemed possible to sell a book, 
his samples in his saddlebags. He was a natural orator, a born enter- 
tainer, an expert violinist; and these gifts he turned to good account 
in his book-selling activities. 

If a political meeting was to be held near any place he happened 
upon, Weems would hurry to it, make a speech, and advertise his 
wares. A religious gathering was his joy; there he would preach and 
exhort — and sell books. Did young people assemble for merrymak- 
ing, Weems was in his element, and played the fiddle for the danc- 
ing. If he arrived at the capital of a State when the Legislature 
was in session, he would contrive to be invited to address the Solons 
— and procure their subscriptions. 

2 Weems probably knew more of the real life of the country, from 
Pennsylvania southward, than any other one man; and he thoroughly 
understood American tastes and characteristics. To this is due the 
unparalleled success of his Life of Washington. In addition to this 
absurd but engaging book, Weems wrote the Life of Gen. Francis 
Marion (1805); the Life of Benjamin Franklin (1817); and the Life 
of William Penn (1819). He was also the author of several tem- 
perance pamphlets, the most popular of which was the Drunkard's 
Looking Glass. Weems died in 1825. 

Weems's Life of Washington still enjoys a good sale. It has been one 
of the most widely purchased and read books in our history, and has 
profoundly influenced the American conception of Washington. To 
it we owe the grotesque and wholly imaginary stories of young Wash- 
ington and the cherry tree, the planting of lettuce by his father to 
prove to the boy the designs of Providence, and other anecdotes that 



232 JOHN MARSHALL 

been a professional book agent with every trick of 
the trade at his fingers' ends, and was perfectly ac- 
quainted with the popular taste. 

First, the parson-subscription agent hied himself 
to Baltimore. "I average 12 sub s pr day. Thanh 
God for that," he wrote to his employer. He is on 
fire with enthusiasm: "If the Work be done hand- 
somely, you will sell at least 20,000," he brightly 
prophesies. Within a week Weeins attacks the post- 
masters and insists that he be allowed to secure 
sub-agents from among the gentry: "The Mass of 
Riches and of Population in America lie in the 
Country. There is the wealthy Yeomanry; and 
there the ready Thousands who w d - instantly second 
you were they but duly stimulated." 1 

Almost immediately Weems discovered a popular 
distrust of Marshall's forthcoming volumes: "The 
People are very fearful that it will be prostituted to 
party purposes," he informs Wayne. "For Heaven's 
Sake, drop now and then a cautionary Hint to John 
Marshall Esq. Your all is at stake with respect to 
this work. If it be done in a generally acceptable 
manner you will make your fortune. Otherwise the 
work will fall an Abortion from the press." 2 

Weems's apprehension grew. Wayne had written 
that the cities would yield more subscribers than 
the country. "For a moment, admit it," argues 
Weems: "Does it follow that the Country is a mere 

make that intensely human founder of the American Nation an im- 
possible and intolerable prig. 

The only biography of Weems is Parson Weems, by Lawrence C. 
Wroth, a mere sketch, but trustworthy and entertaining. 

1 Weems to Wayne, Dec. 10, 1802, Dreer MSS. loc. cit. 

2 Same to same, Dec. 14, 1802, Dreer MSS. loc. cit. 



BIOGRAPHER 233 

blank, a cypher not worth your notice? Because 
there are 30,000 wealthy families in the City and 
but 20,000 in the Country, must nothing be tried to 
enlist 5000, at least of these 20,000??? // the Fed 8 
sh d be disappointed, and the Demo s disgusted with 
Gen 1 - Marshals performance, will it not be very 
convenient to have 4 to 5000 good Rustic Blades to 
lighten your shelves & to shovel in the Dol $ . " x 

The dean of book agents evidently was having a 
hard time, but his resourcefulness kept pace with his 
discouragement: "Patriotic Orations — Gazetter 
Puffs — Washingtonian Anecdotes, Sentimental, 
Moral Military and Wonderful— All sh d be Tried," 
he advises Wayne. 2 Again, he notes the failure of 
the postmasters to sell Marshall's now much-talked- 
of book. "In six months," he writes from Martins- 
burg, Virginia, "the P. Master here got 1. In | day. 
I thank God, I've got 13 sub s ." 3 

The outlook for subscriptions was even worse in 
New England. Throughout the whole land, there 
was, it seems, an amazing indifference to Washing- 
ton's services to the Nation. "I am sorry to inform 
you," Wayne advised Marshall and his associate, 
"that the Prospect of an extensive Subscription is 
gloomy in N. England, particularly they argue it is too 
Expensive and wait for a cheaper Edition — 'tis like 
Americans, Mr. Wolcott and Mr. Pickering say they 
are loud in their professions, but attempt to touch 
their purses and they shut them in a moment." 4 

1 Weems to Wayne, Dec. 17, 1802, Dreer MSS. loc. tit. 

2 Same to same, Dec. 22, 1802, Dreer MSS. loc. tit. 

3 Same to same, April 2, 1803, Dreer MSS. loc. tit. 

4 Wayne to Bushrod Washington, Jan. 23, 1803, Dreer MSS. loc. tit 



234 JOHN MARSHALL 

Writing from Fredericksburg, Virginia, Weems at 
last mingles cheer with warning: "Don't indulge a 
fear — let no sigh of thine arise. Give Old Washing- 
ton fair flay and all will be well. Let but the In- 
terior of the Work be Liberal & the Exterior Elegant, 
and a Town House & a Country House, a Coach 
and Sideboard and Massy Plate shall be thine." 
Still, he declared, "I sicken when I think how much 
may be marr d ." 1 

A week later found the reverend solicitor at Car- 
lisle, Pennsylvania, and here the influence of politics 
on the success of Marshall's undertaking again crops 
out: "The place had been represented to me," re- 
cords Weems, "as a Nest of Anti Washingtonian 
Hornets who w d draw their Stings at mention of 
his name — and the Fed [torn] Lawyers are all gone 
to York- However, I dash d in among them and 
thank God have obtain d already 17 good names." 2 

By now even the slow-thinking Bushrod Wash- 
ington had become suspicious of Jefferson's post- 
masters: "The postmasters being (I believe) Dem- 
ocrats. 3 Are you sure they will feel a disposition to 
advance the work?" 4 Later he writes: "I would not 
give one honest soliciting agent for 1250 quiescent 
postmasters." 5 

1 Weems to Wayne, April 8, 1803, Dreer MSS. loc. cit. 

2 Same to same, April 18, 1803, Dreer MSS. loc. cit. 

3 Bushrod Washington, like the other Federalists, would not call 
his political opponents by their true party name, Republicans: he 
styled them "democrats," the most opprobrious term the Federalists 
could then think of, excepting only the word "Jacobins." (See vol. n, 
439, of this work.) 

4 Washington to Wayne, March 1, 1803, Dreer MSS. loc. cit. 
6 Same to same, March 23, 1803, Dreer MSS. loc. cit. 



BIOGRAPHER 235 

A year passed after the first subscriptions were 
made, and not even the first volume had appeared. 
Indeed, no part of the manuscript had been finished 
and sent to the publisher. Wayne was exasperated. 
"I am extremely anxious on this subject," he com- 
plains to Bushrod Washington, "as the Public evince 
dissatisfaction at the delay. Each hour I am ques- 
tioned either verbally or by letter relative to it & 
its procrastination. The subscription seems to have 
received a check in consequence of an opinion that 
it is uncertain when the work will go to press. 
Twelve thousand dollars is the Total Cash yet rece d 
— not quite 4,000 subscribers." 1 

By November, 1803, many disgusted subscribers 
are demanding a refund of the money, and Wayne 
wants the contract changed to the payment of a 
lump sum. The "Public [are] exclaiming against 
the price of 3 Doll s per vol.," and his sanguine ex- 
pectations have evaporated: "I did hope that I 
should realize half the number of subscribers you 
contemplated, thirty thousand; . . but altho' two ac- 
tive, and twelve hundred other agents have been em- 
ployed 12 months, the list of names does not amount 
to one seventh of the contemplated number." 2 

1 Wayne to Washington, Oct. 23, 1803, Dreer MSS. he. cit. 

An interesting sidelight on the commercial methods of the times is 
displayed by a circular which Wayne sent to his agents calling for 
money from subscribers to Marshall's Life of Washington: "The re- 
mittance may be made through the Post Office, and should any danger 
be apprehended, you can cut a Bank note in two parts and send each 
by separate mails." (Wayne's Circular, Feb. 17, 1803, Dreer MSS. 
loc. cit.) 

2 This list was published in the first edition. It is a good directory 
of the most prominent Federalists and of the leading Republican 
politicians of the time. "T. Jefferson, P.U.S." and each member of 



236 JOHN MARSHALL 

Wayne insists on purchasing the copyright "for 
a moderate, specifick sum" so that he can save him- 
self from loss and "that the Publick disgust may 
be removed. " He has heard, he says, and quite 
directly, that the British rights have been sold "at 
two thousand doll 3 !!!" — and this in spite of the 
fact that, only the previous year, Marshall and 
Washington "expected Seventy Thousand." 1 

At last, more than three years after Marshall had 
decided to embark upon the uncertain sea of author- 
ship, he finished the first of the five volumes. And 
such a mass of manuscript! "It will make at least 
Eight hundred pages !!!!" moaned the distraught 
publisher. At that rate, considering the small num- 
ber of subscribers and the greatly increased cost of 
paper and labor, 2 Wayne would be ruined. No title- 
page had been sent, and Marshall's son, who had 
brought the manuscript to Philadelphia, "aston- 
ished" Wayne by telling him "that his father's 
name was not to appear in the Title." 3 

When Marshall learned that the publisher de- 
manded a title-page bearing his name, he insisted 

his Cabinet subscribed; Marshall himself was a subscriber for his 
own book, and John C. Calhoun, a student at Yale College at the 
time, was another. In the cities most of the lawyers took Marshall's 
book. 

1 Wayne to Bushrod Washington, Nov. 3, 1803, Dreer MSS. 
loe. cit. 

It would seem from this letter that Marshall and Washington had 
reduced their lump cash price from $100,000 to $70,000. In stating 
his expenses, Wayne says that the painter "Gilbert Stuart demanded 
a handsome sum for the privilege of Engraving from his Original" 
portrait of Washington. 

2 See letter last cited. 

3 Wayne to Bushrod Washington, Dec. 16, 1803, Dreer MSS. 
he. cit. 



BIOGRAPHER 237 

that this was unnecessary and not required by the 
copyright law. "I am unwilling," he hastened to 
write Wayne, "to be named in the book or in the 
clerk's office as the author of it, if it be avoidable." 
He cannot tell how many volumes there will be, 
or even examine, before some time in May, 1804, 
Washington's papers relating to the period of his 
two administrations. The first volume he wants 
"denominated an introduction." It is too long, he 
admits, and authorizes Wayne to split it, putting 
all after "the peace of 1763" into the second vol- 
ume. 1 

Marshall objects again to appearing as the au- 
thor: "My repugnance to permitting my name to 
appear in the title still continues, but it shall yield 
to your right to make the best use you can of the 
copy." He does not think that "the name of the 
author being given or withheld can produce any 
difference in the number of subscribers"; but, since 
he does not wish to leave Wayne "in the Opinion 
that a real injury has been sustained," he would 
" submit scruples " to Wayne and Washington, "only 
requesting that [his] name may not be given but on 
mature consideration and conviction of its propri- 
ety." In any case, Marshall declares: "I wish not 
my title in the judiciary of the United States to be 
annexed to it." 

He writes at great length about punctuation, par- 
agraphing, capital letters, and spelling, giving minute 
directions, but leaves much to Wayne's judgment. 
As to spelling: "In any doubtful case I wou d de- 
1 Marshall to Wayne, Dec. 23, 1803, Dreer MSS. loc. cit. 



238 JOHN MARSHALL 

cidedly prefer to follow Johnson." 1 Two other long 
letters about details of printing the first volume 
followed. By the end of March, 1804, his second 
volume was ready. 2 

He now becomes worried about "the inaccuracies 
. . the many and great defects in composition" of 
the first two volumes; but "the hurried manner in 
which it is press d forward renders this inevitable." 
He begs Bushrod Washington to "censure and alter 
freely. . . You mistake me very much if you think 
I rank the corrections of a friend with the bitter 
sarcasms of a foe, or that I shou d feel either wounded 
or chagrined at my inattentions being pointed out 
by another." 3 

Once more the troubled author writes his asso- 
ciate, this time about the spelling of "Chesapeak" 
and "enterprise," the size of the second volume, and 
as to "the prospects of subscribers." 4 Not until 
June, 1804, did Marshall give the proof-sheets of 
the first volume even "a hasty reading" because 
of "the pressure of . . official business." 5 Totally 
forgotten was the agreed plan to publish maps in 
a separate volume, although it was thus "stated in 
the prospectus." 6 He blandly informs the exasper- 
ated publisher that he must wait a long time after 
publishing the volumes describing the Revolution 
and those on the Presidency of Washington before 

1 Marshall to Wayne, Jan. 10, 1804, Dreer MSS. loc. cit. 

2 Marshall to Bushrod Washington, March 25, 1804, Dreer MSS. 
loc. cit. 

3 Same to same, April, 1804, Dreer MSS. loc. cit. 

4 Same to same, April 29, 1804, Dreer MSS. loc. cit. 

6 Marshall to Wayne, June 1, 1804, Dreer MSS. loc. cit. 
8 Same to same, June 6, 1804, Dreer MSS. loc. cit. 



BIOGRAPHER 239 

the manuscript of the last volume can be sent to 
press — this when many subscribers were clamoring 
for the return of the money they had paid, and the 
public was fast losing interest in the book. Large 
events had meanwhile rilled the heavens of popular 
interest, and George Washington's heroic figure was 
already becoming dim and indistinct. 

The proof-sheets of the second volume were now 
in Marshall's hands; but the toil of writing, "super- 
intending the copying," and various other avoca- 
tions "absolutely disabled" him, he insists, from 
giving them any proper examination. He had no 
idea that he had been so careless in his writing and 
is anxious to revise the work for a second edition. 
He complains of his health and says he must spend 
the summer in the mountains, where, of course, he 
"cannot take the papers with [him] to prosecute the 
work." He will, however, read the pages of the first 
two volumes while on his vacation. 

The manuscript of the third he had finished and 
sent to Bushrod Washington. 1 When Wayne saw the 
length of it, his Quaker blood was heated to wrath. 
Did Marshall's prolixity know no limit? The first 
two volumes had already cost the publisher far more 
than the estimate — would not Washington persuade 
Marshall to be more concise? 2 

By midsummer of 1804 the first two volumes ap- 
peared. They were a dismal performance. Never- 
theless, one or two Federalist papers praised them, 

1 Marshall to Wayne, June 10, July 5, July 8, 1804, Dreer MSS. 
loc. tit. 

2 Wayne to Bushrod Washington, Aug. 20, 1804, Dreer MS& loc* 
cit. 



240 JOHN MARSHALL 

and Marshall was as pleased as any youthful writer 
by a first compliment. He thanks Wayne for send- 
ing the reviews and comments on one of them: "The 
very handsome critique in the 'Political and Com- 
mercial Register' was new to me." He modestly 
admits: "I cou d only regret that there was in it more 
of panuegyric than was merited. The editor . . mani- 
fests himself to be master of a style of a very superior 
order and to be, of course, a very correct judge of the 
composition of Others." 

Marshall is somewhat mollified that his parentage 
of the biography has been revealed: "Having, 
Heaven knows how reluctantly, consented against 
my judgement to be known as the author of the work 
in question I cannot be insensible to the opinions 
entertained of it. But, I am much more solicitous 
to hear the strictures upon it" — than commenda- 
tion of it — because, he says, these would point 
out defects to be corrected. He asks Wayne, there- 
fore, to send to him at Front Royal, Virginia, "every 
condemnatory criticism. . . I shall not attempt to 
polish every sentence; that wou d require repeated 
readings & a long course of time; but I wish to cor- 
rect obvious imperfections & the animadversions of 
others wou d aid me very much in doing so." 1 

Within three weeks Marshall had read his first 
volume in the form in which it had been delivered to 
subscribers, and was "mortified beyond measure 
to find that it [had] been so carelessly written." He 
had not supposed that so many " inelegancies . . cou d 
have appeared in it," and regrets that he must re- 
1 Marshall to Wayne, July 20, 1804, Dreer MSS. loc. cit. 



BIOGRAPHER 241 

quire "Wayne to reset the matter "so materially." 
He informs his publisher, nevertheless, that he is 
starting on his vacation in the Alleghanies; and he 
promises that when he returns he "will . . review 
the corrections" he has made in the first volume, 
although he would "not have time to reperuse the 
whole volume." * 

Not for long was the soul of the perturbed author 
to be soothed with praise. He had asked for "stric- 
tures "; he soon got them. Wayne promptly sent him 
a "Magazine 2 containing a piece condemnatory of 
the work." Furthermore, the books were not going 
well; not a copy could the publisher sell that had 
not been ordered before publication. "I have all 
those on hand which I printed over the number 
of subscribers," Wayne sourly informs the author. 

In response to Marshall's request for time for re- 
vision, Wayne is now willing that he shall take all he 
wishes, since "present prospects would not induce 
[him] to republish," but he cautions Marshall to "let 
the idea of a 2 d edit, revised and corrected remain 
a secret"; if the public should get wind of such a 
purpose the stacks of volumes in Wayne's printing 
house would never be sold. He must have the 
manuscript of the "fourth vol. by the last of Septem- 
ber at furthest. . . Can I have it? — or must I dis- 
miss my people." 

At the same time he begs Marshall to control 
his redundancy: "The first and second vols, have 

1 Marshall to Wayne, Aug. 10, 1804, Dreer MSS. he. cit. 

2 Literary Magazine and American Register of Philadelphia, July, 
1804. The reviewer makes many of the criticisms that appeared on 
the completion of the biography. (See infra, 261-79.) 



242 JOHN MARSHALL 

cost ine (1500) fifteen hundred dollars more than 
calculated ! " 1 

It was small wonder that Marshall's first two 
bulky books, published in the early summer of 1804, 
were not hailed with enthusiasm. In volume one 
the name of Washington was mentioned on only two 
minor occasions described toward the end. 2 The 
reader had to make his way through more than one 
hundred thousand words without arriving even at 
the cradle of the hero. The voyages of discovery, the 
settlements and explorations of America, and the 
history of the Colonies until the Treaty of Paris 
in 1763, two years before the Stamp Act of 1765, 
were treated in dull and heavy fashion. 

The author defends his plan in the preface: No one 
connected narrative tells the story of all the Colonies 
and "few would . . search through the minute de- 
tails"; yet this he held to be necessary to an under- 
standing of the great events of Washington's life. 
So Marshall had gathered the accounts of the vari- 
ous authorities 3 in parts of the country and in 
England, and from them made a continuous his- 
tory. If there were defects in the book it was due 
to "the impatience . . of subscribers" which had so 
hastened him. 

The volume is poorly done; parts are inaccurate. 4 

1 Wayne to Marshall, Aug. 20, 1804, Dreer MSS. he. at. 

2 The affair at Little Meadows and the defeat of Braddock. (Mar- 
shall: Life of George Washington, 1st ed. i, 356-58, 368-71.) 

3 These were: Belknap, Belsham, Chalmers, Dodsley, Entick or 
Entinck, Gordon, Hutchinson, Minot, Ramsay, Raynal, Robertson, 
Russell, Smith, Stedman, Stith, Trumbull. 

4 For example, Marshall's description of Sir William Berkeley, who 
was, the reader is informed, "distinguished . . by the mildness of 



BIOGRAPHER 243 

To Bacon's Rebellion are given only four pages. 1 
The story of the Pilgrims is fairly well told. 2 A page 
is devoted to Roger Williams and six sympathetic 
lines tell of his principles of liberty and toleration. 3 
The Salem witchcraft madness is well treated. 4 The 
descriptions of military movements constitute the 
least disappointing parts of the volume. The begin- 
nings of colonial opposition to British rule are tire- 
somely set out; and thus at last, the reader arrives 
within twelve years of Bunker Hill. 

Marshall admits that every event of the Revolu- 
tionary War has been told by others who had ex- 
amined Washington's "immensely voluminous cor- 
respondence," and that he had copied these authors, 
sometimes using their very language. Still, he prom- 
ises the reader "a particular account of his [Wash- 
ington's] own life." 5 

One page and three lines at the beginning of the 
second volume are all that Marshall gives of the an- 
cestry, birth, environment, upbringing, education, 
and experiences of George Washington, up to the 
nineteenth year of his age. On the second page the 
hero, fully uniformed and accoutred, is plunged 
into the French and Indian Wars. Braddock's de- 
feat, already described in the first volume, is re- 
peated and elaborated. 6 Six lines, closing the first 
chapter, disposes of Washington in marriage and 
describes the bride. 7 

his temper, the gentleness of his manners and . . popular virtues." 
(Marshall, 1st ed. I, 72.) 

1 lb. 188-92; and see vol. I, 6, of this work. 

2 lb. 1st ed. I, 86-89. 3 lb. 111-12. 4 lb.; see Notes, 9-18. 
6 lb. x. 6 76. 1st ed. n, 14-20. 7 lb. 67. 



244 JOHN MARSHALL 

About three pages are devoted to the Stamp Act 
speeches in the British Parliament; while but one 
short paragraph is given to the immortal resolutions 
of Patrick Henry and the passage of them by the 
Virginia House of Burgesses. Not a word describes 
the "most bloody" debate over them, and Henry's 
time-surviving speech is not even referred to. 1 All 
mention of the fact that Washington was a fellow 
member with Henry and voted for the resolutions 
is omitted. Henry's second epoch-making speech at 
the outbreak of the Revolution is not so much as 
hinted at, nor is any place found for the Virginia 
Resolutions for Arming and Defense, which his un- 
rivaled eloquence carried. 

The name of the supreme orator of the Revolution 
is mentioned for the second time in describing the 
uprising against Lord Dunmore, 2 and then Marshall 
adds this footnote: "The same gentleman who had 
introduced into the assembly of Virginia the original 
resolution against the stamp act." 3 

Marshall's account of the development of the idea 
of independence is scattered. 4 He gives with un- 
necessary completeness certain local resolutions fa- 
voring it, 5 while to the great Declaration less than 
two pages 6 are assigned. It is termed " this impor- 
tant paper"; and a footnote disposes of the fact 
that "Mr. Jefferson, Mr. John Adams, Mr. Franklin, 
Mr. Sherman, and Mr. R. R. Livingston, were ap- 
pointed to prepare this declaration; and the draft 
reported by the committee has been generally at- 

1 Marshall, 1st ed. n, 82-83; and see vol. i, 66, of this work. 

2 See vol. i, 74-79, of this work. 3 Marshall, 1st ed. n, 193. 
4 lb. 160-69. 5 76. 374-75. 6 lb. 377-78. 



BIOGRAPHER 245 

tributed to Mr. Jefferson." x A report of the talk 
between Washington and Colonel Paterson of the 
British Army, concerning the title by which Wash- 
ington insisted upon being addressed, 2 is given one 
and one third times the space that is bestowed upon 
the Declaration of Independence. 

Marshall is satisfactory only when dealing with 
military operations. He draws a faithful picture of 
the condition of the army; 3 quotes Washington's 
remorseless condemnations of the militia, 4 short en- 
listments, and the democratic spirit among men and 
officers. 5 When writing upon such topics, Marshall 
is spirited; his pages are those of the soldier that, 
by nature, he was. 

The earliest objection to Marshall's first two vol- 
umes came from American Tories, who complained 
of the use of the word "enemy" as applied to the 
British military forces. Wayne reluctantly calls 
Marshall's attention to this. Marshall replies: 
"You need make no apology for mentioning to me 
the criticism of the word 'enemy.' I will endeavor 
to avoid it where it can be avoided." 6 

Unoff ended by such demands, Marshall was 
deeply chagrined by other and entirely just criti- 
cisms. Why, he asks, had not some one pointed out 
to him "some of those objections . . to the plan 
of the work" before he wrote any part of it? He 
wishes "very sincerely" that this had been done. 
He " should very readily have relinquished [his own] 

1 Marshall, 1st ed. n, 377. 2 lb. 386-89. 3 lb. 390-94. 

4 76. 417-18, 445-46; and see vol. I, 83-86, of this work. 

6 Marshall, 1st ed. u, 259-61. 

6 Marshall to Wayne, Aug. 10, 1804, Dreer MSS. he. cit. 



246 JOHN MARSHALL 

opinion . . if [he] had perceiv d that the public taste 
required a different course." Thus, by implication, 
he blames Wayne or Bushrod Washington, for his 
own error of judgment. 

Marshall also reproaches himself, but in doing so 
he saddles on the public most of the burden of his 
complaints: "I ought, indeed, to have foreseen that 
the same impatience which precipitated the publi- 
cation wou d require that the life and transactions 
of Mr. Washington should be immediately entered 
upon." Even if he had stuck to his original plans, 
still, he "ought to have departed from them so far 
as to have composed the introductory volume at 
leizure after the principal work was finished/' 

Marshall's "mortification" is, he says, also "in- 
creased on account of the careless manner in which 
the work has been executed." For the first time in 
his life he had been driven to sustained and arduous 
mental labor, and he found, to his surprise, that he 
" had to learn that under the pressure of constant 
application, the spring of the mind loses its elas- 
ticity. . . But regrets for the past are unavailing," 
he sighs. "There will be great difficulty in retrieving 
the reputation of the first volume. . . I have there- 
fore some doubts whether it may not be as well to 
drop the first volume for the present — that is not 
to speak of a republication of it." 

He assures Wayne that he need have no fears that 
he will mention a revised edition, and regrets that 
the third volume is also too long; his pen has run 
away with him. He would shorten it if he had the 
copy once more; but since that cannot be, perhaps 



BIOGRAPHER 247 

Wayne might omit the last chapter. Brooding over 
the "strictures" he had so confidently asked for, 
he grows irritable. " Whatever might have been the 
execution, the work wou d have experienced unmer- 
ited censure. We must endeavor to rescue what 
remains to be done from such [criticism] as is de- 
served. I wish you to consult Mr. Washington." * 

Another very long letter from Front Royal quickly 
follows. Marshall again authorizes the publisher 
himself to cut the bulk of the third volume, in the 
hope that it "will not be so defective. . . It shall be 
my care to render the 4th more fit for the public 
eye." He promises Wayne that, in case of a second 
edition, 2 he will shorten his interminable pages which 
shall also "receive very material corrections." But 
a corrected and improved edition! "On this sub- 
ject . . I remain silent. . . Perhaps a free expression 
of my thoughts . . may add to the current which 
seems to set against it." Let the public take the 
first printing "before a second is spoken of." 3 

Washington drew on the publisher 4 and wrote 
Wayne that "the disappointment will be very great 
if it is not paid." In December, 1804, Wayne sent the 
first royalty. It amounted to five thousand dollars. 5 

1 Marshall to Wayne from Front Royal, Virginia, Sept. 3, 1804, 
Dreer MSS. loc. cit. 

2 Marshall spent many years preparing this second edition of his 
Washington, which appeared in 1832, three years before Marshall's 
death. See infra, 272-73. 

3 Marshall to Wayne, Sept. 8, 1804, Dreer MSS. loc. cit. 

4 The amount of this draft is not stated. 

8 This would seem to indicate that Wayne had been able to collect 
payment on the first two volumes, from only two thousand five hun- 
dred subscribers, since, by the contract, Marshall and Washington 
together were to receive one dollar for each book sold. 



248 JOHN MARSHALL 

Our author needed money badly. "I do not wish 
to press you upon the subject of further remittances 
but they will be highly acceptable," Washington 
tells Wayne, "particularly to Mr. Marshall, whose 
arrangements I know are bottomed upon the ex- 
pectation of the money he is to receive from you." * 
In January, 1805, Wayne sent Washington another 
thousand dollars — " which I have paid," says Wash- 
ington, "to Mr. Marshall as I shall also do of the 
next thousand you remit." 2 Thus pressed, Wayne 
sends more money, and by January 1, 1805, Mar- 
shall and Washington have received the total sum 
of eight thousand seven hundred and sixty dollars. 3 

Toward the end of February, 1805, Marshall com- 
pleted the manuscript of the fourth volume. He 
was then in Washington, and sent two copies from 
there to Philadelphia by Francis Hopkinson who 
had just finished his notable work in the Chase im- 
peachment trial. "They are both in a rough state; 
too rough to be sent . . but it was impossible to 
have them recopied," Marshall writes Wayne. He 
admits they are full of errors in capitalization, 
punctuation, and spelling, but adds, "it has abso- 
lutely been impossible to make corrections in these 
respects." 4 This he "fears will produce considerable 
difficulty." Small wonder, with the Chase trial ab- 
sorbing his every thought and depressing him with 
heavy anxiety. 

Marshall's relief from the danger of impeachment 

1 Washington to Wayne, Dec. 25, 1804, Dreer MSS. loc. tit. 

2 Same to same, Jan. 15, 1805, Dreer MSS loc. tit. 

3 Same to same, Dec. SO, 1804, Dreer MSS. loc. tit. 

4 Marshall to Wayne, Feb. 27, 1805, Dreer MSS. loc. tit. 



BIOGRAPHER 240 

is at once reflected in his correspondence with Wayne. 
Two weeks after the acquittal of Chase, he placidh 
informs his publisher that the fifth volume will not 
be ready until the spring of 1806 at the earliest. It 
is "not yet commenced," he says, "but I shall how- 
ever set about it in a few days." He explains that 
there will be little time to work on the biography. 
" For the ensuing twelve months I shall scarcely have 
it in my power to be five in Richmond." * Three 
months later he informs Wayne that it will be "abso- 
lutely impossible" to complete the final volume by 
the time mentioned. "I regret this very seriously 
but it is a calamity for which there is no remedy." 

The cause of this irremediable calamity was "a 
tour of the mountains" — a journey to be made 
"for [his] own health and that of [his] family" from 
which he "cannot return till October." He still 
"laments sincerely that an introductory volume was 
written because [he] finds it almost impossible to 
compress the civil administration into a single vol- 
ume. In doing it," he adds, "I shall be compelled to 
omit several interesting transactions & to mutilate 
others." 2 

At last Marshall's eyes are fully opened to what 
should have been plain to him from the first. No 
body wanted a tedious history of the discovery and 
settlement of America and of colonial development, 
certainly not from his pen. The subject had been 
dealt with by more competent authors. 

But the terrible years following the war, the Con- 

1 Marshall to Wayne, March 16, 1805, Dreer MSS. he. ciL 

2 Same to same, June 29, 1805, Dreer MSS. he. cit. 



250 JOHN MARSHALL 

stitutional period, the Administrations of Washing- 
ton and the first half of that of Adams, the decisive 
part played by Washington throughout this critical 
time of founding and constructing — all these were 
virgin fields. They constituted, too, as vital an 
epoch in American history as the Revolution itself. 
Marshall's own life had been an important part of 
it, and he was not unequipped to give it adequate 
treatment. 

Had Marshall written of these years, it is probable 
that the well-to-do Federalists alone would have 
purchased the thirty thousand sets that Marshall 
originally counted on to be sold. He would have 
made all the money he had expected, done a real 
public service, and achieved a solid literary fame. 
His "Life of Washington" might have been the 
great social, economic, political, and Constitutional 
history of the foundation processes of the Gov- 
ernment of the American Nation. His entire five 
volumes would not have been too many for such 
a work. 

But all this matter relating to the formative years 
of the Nation must now be crowded between two 
covers and offered to an indifferent, if not hostile, 
public — a public already "disgusted," as the pub- 
lisher truly declared, by the unattractive rehash of 
what had already been better told. 

Wayne again presses for a change in the contract; 
he wants to buy outright Marshall's and Washing- 
ton's interests, and end the bankrupting royalty he 
is paying them: "If you were willing to take 70000$ 
for 30000 Sub s I thought it would not be deemed 



BIOGRAPHER 251 

illiberal in offering twenty thousand dollars for four 
thousand subscribers — this was two-sevenths of 
the original sum for less than one-seventh of the sub- 
scribers contemplated." Wayne asks Marshall and 
Washington to "state the lowest sum" they will 
take. Subscriptions have stopped, and in three 
years he has sold only "two copies . . to non-sub- 
scribers." But the harried publisher sends two 
thousand dollars more of royalty. 1 

In the autumn of 1805, upon returning from his 
annual vacation, Marshall is anxious to get to work, 
and he must have the Aurora and Freneau's Gazette 
quickly. His "official duties recommence . . on the 
22 d of November from which time they continue 'till 
the middle of March." Repeating his now favorite 
phrase, he says, "It is absolutely impossible to get 
the residue of the work completed in the short time 
which remains this fall." He has been sorely vexed 
and is a cruelly overworked man: "The unavoidable 
delays which have been experienced, the immense 
researches among volumes of manuscript, & chests 
of letters & gazettes which I am compelled to make 
will impede my progress so much that it is absolutely 
impossible" to finish the book at any early date. 2 

Want of money continually embarrasses Marshall: 
"What payments my good Sir, will it be in your 
power to make us in the course of this & the next 
month?" Bushrod Washington asks Wayne. "I 
am particularly anxious," he explains, "on account 
of Mr. M. . . His principal dependence is upon this 

1 Wayne to Washington, July 4, 1804, Dreer MSS. loc. tit. 
1 Marshall to Wayne, Oct. 5, 1805, Dreer MSS. he. cit. 



252 JOHN MARSHALL 

fund." 1 Marshall now gets down to earnest and 
continuous labor and by July, 1806, actually finishes 
the fifth and only important volume of the biog- 
raphy. 2 

During all these years the indefatigable Weems 
continued his engaging career as book agent, and, 
like the subscribers he had ensnared, became first 
the victim of hope deferred and then of unrealized 
expectations. The delay in the publication of Mar- 
shall's first volumes and the disfavor with which the 
public received them when finally they appeared, 
had, it seems, cooled the ardor of the horseback-and- 
saddlebag distributer of literary treasures. At all 
events, he ceases to write his employer about Mar- 
shall's "Life of Washington," but is eager for other 
books. 3 Twice only, in an interval of two years, he 

1 Washington to Wayne, April 1, 1806, Dreer MSS. loc. cit. It was 
in this year that the final payments for the Fairfax estate were made 
and the deed executed to John and James M. Marshall and their 
brother-in-law Rawleigh Colston. See vol. n, footnote to 211, and vol. 
IV, chap, in, of this work. 

2 Same to same, July 14, 1806, Dreer MSS. loc. cit. 

3 Weems's orders for books are trustworthy first-hand information 
concerning the literary tastes of the American people at that time, 
and the extent of education among the wealthy. Writing from Savan- 
nah, Georgia, August, 1806, he asks for "Rippons hymns, Watts D?, 
Newton's D?, Methodist D?, Davies Sermons, Massillons D?, Vil- 
liage D?, Whitfields D?, Fuller [the eminent Baptist divine,] Works, 
viz. His Gospel its own evidence, Gospel Worthy of all Acceptation, Pil- 
grim's progress, Baxter's S*f Rest, Call to the Unconverted, Alarm, by 
Allein, Hervey 's Works, Rushe's Medical Works; All manner of School 
Books, Novels by the cart load, particularly Charlotte Temple . . 2 or 
300 of Charlotte Temple . . Tom Paines Political Works, Johnson's 
Poets boun d in green or in any handsome garb, particularly Miltons 
Paradise lost, Tompsons Seasons, Young's N. Thoughts wou'd do 
well." (Weems to Wayne, Aug. 1806, Dreer MSS. loc. cit.) 

Another order calls for all the above and also for "Websters Spell g 
book, Universal D?, Fullers Backslider, Booths reign of Grace, Look- 
ing Glass for the mind, Blossoms of Morality, Columbian Orator, 



BIOGRAPHER 253 

mentions Marshall's biography, but without spirit 
or enthusiasm. 1 In the autumn of 1806, he queru- 
lously refers to Marshall and Washington: " I did not 
call on you [Wayne] for increase of Diurnal Salary. 
I spoke to Judge W. I hope and expect that he and 
Gen. M. 2 will do me something." 

Marshall's third volume, which had now ap- 
peared, is an improvement on the first two. In it he 
continues his narrative of the Revolutionary War 
until 1779, and his statement of economic and finan- 
cial conditions 3 is excellent. The account of the 
battles of Brandywine and Germantown, in both of 
which he had taken part, 4 is satisfactory, 5 and his 
picture of the army in retreat is vivid. 6 He faithfully 
relates the British sentiment among the people. 7 
Curiously enough, he is not comprehensive or stir- 
ring in his story of Valley Forge. 8 His descriptions 
of Lafayette and Baron von Steuben are worthy. 9 
Again and again he attacks the militia, 10 and is mer- 
ciless in his criticism of the slip-shod, happy-go- 

Enticks Dictionary, Murrays Grammar, Enfield's Speaker, Best 
Books on Surveying, D? on Navigation, Misses Magazine, Vicar of 
Wakefield, Robinson Crusoe, Divine Songs for Children, Pamela 
Small." In this letter forty-four different titles are called for. 

1 Weems to Wayne, Jan. 28, 1804, and Aug. 25, 1806, Dreer MSS. 
loc. cit. 

2 Same to same, Sept. 20, 1806, Wayne MSS. loc. cit. This letter is 
written from Augusta, Georgia. Among other books ordered in it, 
Weems names twelve copies each of "Sallust, Corderius, Eutropius, 
Nepos, Caesar's Commentaries, Virgil Delph., Horace Delphini, Ci- 
cero D?, Ovid D?"; and nine copies each of "Greek Grammar, D? 
Testament, Lucian, Xenophon." 

3 Marshall, m, 28-42. 4 See vol. I, 93-98, 102, of this work. 
6 Marshall, in, chaps, in and iv. 

6 See vol. i, 98-101, of this work. 7 Marshall, in, 43-48, 52 

8 lb. 319, 330, 341-50; and see vol. I, 110-32, of this work. 

9 Marshall, in, 345, 347-49. 10 lb. 50-53, 62. 



254 JOHN MARSHALL 

lucky American military system. These shortcom- 
ings were offset, he says, only by the conduct of the 
enemy. 1 The treatment of American prisoners is 
set forth in somber words, 2 and he gives almost a 
half -page of text 3 and two and a half pages of ap- 
pendix 4 to the murder of Miss McCrea. 

The story of the battle of Monmouth in which 
Marshall took part is told with spirit. 5 Nineteen 
pages 6 are devoted to the history of the alliance with 
the French monarch, and no better resume of that 
event, so fruitful of historic results, ever has been 
given. The last chapter describes the arrival of the 
British Commission of Conciliation, the propositions 
made by them, the American answer, the British at- 
tempts to bribe Congress, 7 followed by the Indian 
atrocities of which the appalling massacres at Kings- 
ton and Wyoming were the worst. 

The long years of writing, the neglect and crudity 
of his first efforts, and the self-reproval he under- 
went, had their effect upon Marshall's literary crafts- 
manship. This is noticeable in his fourth volume, 
which is less defective than those that preceded it. 
His delight in verbiage, so justly ridiculed by Cal- 

1 Marshall, in, 59. "No species of licentiousness was unpracticed. 
The plunder and destruction of property was among the least offensive 
of the injuries sustained." The result "could not fail to equal the most 
sanguine hopes of the friends of the revolution. A sense of personal 
wrongs produced a temper, which national considerations had been 
found too weak to excite. . . The great body of the people flew to 
arms." 

2 lb. 20, 22, 24, 27, 386. See also vol. i, 115-16, of this work, and 
authorities there cited. 

3 Marshall, in, 246-47. * lb. Notes, 4-6. 
6 lb. chap. 8; and see vol. I, 134-38, of this work. 
6 Marshall, in, 366-85. 7 lb. 486-96. 



BIOGRAPHER 255 

lender in 1799, 1 is a little subdued, and his sense of 
proportion is somewhat improved. He again criti- 
cizes the American military system and traces its 
defects to local regulations. 2 The unhappy results of 
the conflict of State and Nation are well presented. 3 

The most energetic narrative in the volume is that 
of the treason of Benedict Arnold. In telling this 
story, Marshall cannot curb the expression of his 
intense feeling against this "traitor, a sordid traitor, 
first the slave of his rage, then purchased with 
gold." Marshall does not economize space in detail- 
ing this historic betrayal of America, 4 imperative as 
the saving of every line had become. 

He relates clearly the circumstances that caused 
the famous compact between Denmark, Sweden, 
and Russia known as "The Armed Neutrality," 
formed in order to check Great Britain's power on 
the seas. This was the first formidable assertion 
of the principle of equality among nations on the 
ocean. Great Britain's declaration of war upon Hol- 
land, because that country was about to join "The 
Armed Neutrality," and because Holland appeared 
to be looking with favor upon a commercial treaty 
which the United States wished to conclude with 
her, is told with dispassionate lucidity. 5 

Marshall gives a compact and accurate analysis 
— by far the best work he has done in the whole four 
volumes — of the party beginnings discernible when 
the clouds of the Revolutionary War began to break. 
He had now written more than half a million words, 

1 See vol. n, 405, of this work. 2 Marshall, iv, 114-15. 3 lb. 188. 
4 lb. 247-65 ; see vol. 1, 143-44, of this work. B Marshall, iv, 284-88. 



256 JOHN MARSHALL 

and this description was the first part of his work 
that could be resented by the Republicans. The 
political division was at bottom economic, says 
Marshall — those who advocated honest payment 
)f public debts were opposed by those who favored 
repudiation; and the latter were also against mili- 
tary establishments and abhorred the idea of any 
•National Government. 1 

The fourth volume ends with the mutiny of part 
of the troops, the suppression of it, Washington's 
farewell to his officers, and his retirement when 
peace was concluded. 

Marshall's final volume was ready for subscribers 
and the public in the autumn of 1807, just one year 
before the Federalist campaign for the election of 
Jefferson's successor — four years later than Jeffer- 
son had anticipated. 2 It was the only political part 
of Marshall's volumes, but it had not the smallest 
effect upon the voters in the Presidential contest. 

Neither human events nor Thomas Jefferson had 
waited upon the convenience of John Marshall. The 
Federalist Party was being reduced to a grumbling 
company of out-of-date gentlemen, leaders in a 
bygone day, together with a scattered following 
who, from force of party habit, plodded along after 
them, occasionally encouraged by some local circum- 
stance or fleeting event in which they imagined an 
"issue" might be found. They had become anti- 
National, and, in their ardor for Great Britain, had 
all but ceased to be American. They had repudiated 
democracy and assumed an attitude of insolent 

1 Marshall, iv, 530-31. 2 See Jefferson's letter to Barlow, supra. 



BIOGRAPHER 257 

superiority, mournful of a glorious past, despairing 
of a worthy future. 1 

Marshall could not hope to revive the fast weak- 
ening Federalist organization. The most that he 
could do was to state the principles upon which op- 
posing parties had been founded, and the determina- 
tive conflicts that had marked the evolution of them 
and the development of the American Nation. He 
could only set forth, in plain and simple terms, those 
antagonistic ideas w T hich had created party divi- 
sions; and although the party to which one group 
of those ideas had given life was now moribund, 
they were ideas, nevertheless, which would inevitably 
create other parties in the future. 

The author's task was, therefore, to deal not only 
with the years that had gone; but, through his treat- 
ment of the past, with the years that were to come. 
He must expound the philosophy of Nationalism as 
opposed to that of Localism, and must enrich his ex- 
position by the unwritten history of the period be- 
tween the achievement of American Independence 
and the vindication of it in our conflict with France. 

Marshall was infinitely careful that every state- 
ment in his last volume should be accurate; and, to 
make sure of this, he wrote many letters to those who 
had first-hand knowledge of the period. Among 
others he wrote to John Adams, requesting permis- 
sion to use his letters to Washington. Adams read- 
ily agreed, although he says, "they were written 
under great agitation of mind at a time when a 

1 See supra, chap, m, and infra, chap, vi; and see especially vol. 
IV, chap, i, of this work. 



258 JOHN MARSHALL 

cruel necessity compelled me to take measures 
which I was very apprehensive would produce the 
evils which have followed from them. If you have 
detailed the events of the last years of General 
Washington's Life, you must have run the Gauntlet 
between two infuriated factions, armed with scor- 
pions. . . It is a period which must however be in- 
vestigated, but I am very confident will never be 
well understood." 1 

Because of his lack of a sense of proportion in 
planning his "Life of Washington," and the volumi- 
nousness of the minor parts of it, Marshall had to 
compress the vital remainder. Seldom has a serious 
author been called upon to execute an undertaking 
more difficult. Marshall accomplished the feat in 
creditable fashion. Moreover, his fairness, restraint, 
and moderation, even in the treatment of subjects 
regarding which his own feelings were most ardent, 
give to his pages not only the atmosphere of justice, 
but also something of the artist's touch. 

1 Adams to Marshall, July 17, 1806, MS. 

This letter is most important. Adams pictures his situation when 
President: "A first Magistrate of a great Republick with a General 
officer under him, a Commander in Chief of the Army, who had ten 
thousand times as much Influence Popularity and Power as himself, 
and that Commander in Chief so much under the influence of his 
Second in command [Hamilton], . . the most treacherous, malicious, 
insolent and revengeful enemy of the first Magistrate is a Picture 
which may be very delicate and dangerous to draw. But it must be 
drawn. . . 

"There is one fact . . which it will be difficult for posterity to be- 
lieve, and that is that the measures taken by Senators, Members of 
the House, some of the heads of departments, and some officers of the 
Army to force me to appoint General Washington . , proceeded not 
from any regard to him . . but merely from an intention to employ 
him as an engine to elevate Hamilton to the head of affairs civil as 
well as military." 



BIOGRAPHER 259 

"Washington's Nationalism is promptly and skill- 
fully brought into the foreground. 1 An excellent ac- 
count of the Society of the Cincinnati contains the 
first covert reflection on Jefferson. 2 But the state of 
the country under the Articles of Confederation is 
passed over with exasperating brevity — only a few 
lines are given to this basic subject. 3 

The foundation of political parties is stated once 
more and far better — "The one . . contemplated 
America as a nation," while "the other attached 
itself to state authorities." The first of these was 
made up of "men of enlarged and liberal minds . . 
who felt the full value of national honour, and the 
full obligation of national faith; and who were 
persuaded of the insecurity of both, if resting for 
their preservation on the concurrence of thirteen 
distinct sovereignties"; and with these far-seeing 
and upright persons were united the "officers of the 
army " whose experience in war had weakened "local 
prejudices." 4 

Thus, by mentioning the excellence of the mem- 
bers of one party, and by being silent upon the short- 
comings of those of the other party, Marshall 
imputes to the latter the reverse of those qualities 
which he praises — a method practiced throughout 
the book, and one which offended Jefferson and 
his followers more than a direct attack could have 
done. 

He succinctly reviews the attempts at union, 5 and 
the disputes between America and Great Britain 

1 He was "accustomed to contemplate America as his country, and 
to consider . . the interests of the whole." (Marshall, v, 10.) 

2 lb. 24-30. » lb. 31-32. « lb. 33-34. 6 lb. 45-47. 



260 JOHN MARSHALL 

over the Treaty of Peace; * he quickly swings back to 
the evolution of political parties and, for the third 
time, reiterates his analysis of debtor and Localist as 
against creditor and Nationalist. 

"The one [party] struggled . . for the exact ob- 
servance of public and private engagements"; to 
them "the faith of a nation, or of a private man 
was deemed a sacred pledge." These men believed 
that "the distresses of individuals" could be relieved 
only by work and faith, "not by a relaxation of the 
laws, or by a sacrifice of the rights of others." They 
thought that "the imprudent and idle could not be 
protected by the legislature from the consequences 
of their indiscretion; but should be restrained from 
involving themselves in difficulties, by the conviction 
that a rigid compliance with contracts would be en- 
forced." Men holding these views "by a natural as- 
sociation of ideas" were "in favour of enlarging the 
powers of the federal government, and of enabling it 
to protect the dignity and character of the nation 
abroad, and its interests at home." 2 

With these principles Marshall sharply contrasts 
those of the other party: "Viewing with extreme 
tenderness the case of the debtor, their efforts were 
unceasingly directed to his relief"; they were against 
"a faithful compliance with contracts" — such a 
measure they thought "too harsh to be insisted on . . 
and one which the people would not bear." There- 
fore, they favored "relaxing . . justice," suspending 
the collection of debts, remitting taxes. These men 
resisted every attempt to transfer from their own 

1 Marshall, v, 65. 2 lb. 85-86. 



BIOGRAPHER 261 

hands into those of Congress all powers that were, in 
reality. National. Those who held to such "lax no- 
tions of honor," were, in many States, "a decided 
majority of the people," and were very powerful 
throughout the country. Wherever they secured 
control, paper money, delay of justice, suspended 
taxes "were the fruits of their rule"; and where they 
were in the minority, they fought at every election 
for the possession of the State Governments. 

In this fashion Marshall again states those an- 
tipodal philosophies from which sprang the first 
two American political parties. With something like 
skill he emphasizes the conservative and National 
idea thus: "No principle had been introduced [in the 
State Governments] which could resist the wild proj- 
ects of the moment, give the people an opportunity 
to reflect, and allow the good sense of the nation 
time for exertion." The result of "this instability in 
principles which ought if possible to be rendered 
immutable, produced a long train of ills." 1 The 
twin spirits of repudiation and Localism on one side, 
contending for the mastery against the compan- 
ion spirits of faith-keeping and Nationalism on the 
other, were from the very first, says Marshall, the 
source of public ill-being or well-being, as one or 
the other side prevailed. 

Then follows a review of the unhappy economic 
situation which, as Marshall leaves the reader to in- 
fer, was due exclusively to the operation of the prin- 
ciples which he condemns by the mere statement 
of them. 2 So comes the Philadelphia Convention 

1 Marshall, v, 85-87. i lb. 88-89. 



262 JOHN MARSHALL 

of 1787 that was deemed by many "an illegitimate 
meeting." 1 

Although Washington presided over, and was the 
most powerful influence in, the Constitutional Con- 
vention, Marshall allots only one short paragraph 
to that fact. 2 He enumerates the elements that 
prepared to resist the Constitution; and brings out 
clearly the essential fact that the proposed govern- 
ment of the Nation was, by those who opposed it, 
considered to be "foreign." He condenses into less 
than two pages his narrative of the conflict over 
ratification, and almost half of these few lines is de- 
voted to comment upon "The Federalist." 

Marshall writes not one line or word of Washing- 
ton's power and activities at this critical moment. 
He merely observes, concerning ratification, that 
"the intrinsic merits of the instrument would not 
have secured" the adoption of the Constitution, and 
that even in some of the States that accepted it "a 
majority of the people were in the opposition." 3 

He tells of the pressure on Washington to accept 
the Presidency. To these appeals and Washington's 
replies, he actually gives ten times more space than 
he takes to describe the formation, submission, and 
ratification of the Constitution itself. 4 After briefly 
telling of Washington's election to the Presidency, 
Marshall employs twenty pages in describing his 
journey to New York and his inauguration. 

Then, with quick, bold strokes, he lays the final 

1 Marshall, v, 105. Marshall's account of the causes and objects of 
Shays's Rebellion is given wholly from the ultra-conservative view 
of that important event. (lb. 123.) 

2 lb. 128-29. 3 lb. 132. 4 lb. 133-50. 



BIOGRAPHER 263 

color on his picture of the state of the country be- 
fore the new government was established, and dark- 
ens the tints of his portrayal of those who were 
opposing the Constitution and were still its enemies. 
In swift contrast he paints the beginnings of better 
times, produced by the establishment of the new 
National Government: "The new course of thinking 
which had been inspired by the adoption of a con- 
stitution that was understood to prohibit all laws 
impairing the obligation of contracts, had in a great 
measure restored that confidence which is essential 
to the internal prosperity of nations." x 

He sets out adequately the debates over the first 
laws passed by Congress, 2 and is generous in his 
description of the characters and careers of both 
Jefferson and Hamilton when they accepted places 
in Washington's first Cabinet. 3 He joyfully quotes 
Washington's second speech to Congress, in which 
he declares that "to be prepared for war is one of 
the most effectual means of preserving peace"; and 
in which the people are adjured "to discriminate the 
spirit of liberty from that of licentiousness." 4 

An analysis of Hamilton's First Report on the 

1 Marshall, v, 178-79. Thus Marshall, writing in 1806, states one 
of the central principles of the Constitution as he interpreted it from 
the Bench years later in three of the most important of American 
judicial opinions — Fletcher vs. Peck, Sturgis vs. Crowninshield, and 
the Dartmouth College case. (See infra, chap, x; also vol. iv, chaps. 
rv and v, of this work.) 

2 Marshall, v, 198-210. 

3 lb. 210-13. At this point Marshall is conspicuously, almost osten- 
tatiously impartial, as between Jefferson and Hamilton. His descrip- 
tion of the great radical is in terms cf praise, almost laudation; the 
same is true of his analysis of Hamilton's work and character. But 
he gives free play to his admiration of John Adams. (lb. 219-20.) 

4 lb. 230-32. 



264 JOHN MARSHALL 

Public Credit follows. The measures flowing from it 
"originated the first regular and systematic oppo- 
sition to the principles on which the affairs of the 
union were administered." l In condensing the mo- 
mentous debate over the establishment of the Amer- 
ican financial system, Marshall gives an excellent 
summary of the arguments on both sides of that 
controversy. He states those of the Nationalists, 
however, more fully than the arguments of those 
who opposed Hamilton's plan. 2 

While attributing to Hamilton's financial meas- 
ures most of the credit for improved conditions, 
Marshall frankly admits that other causes con- 
tributed to the new-found prosperity: By "progres- 
sive industry, . . the influence of the constitution on 
habits of thinking and acting," and especially by 
"depriving the states of the power to impair the 
obligation of contracts, or to make any thing but 
gold and silver a tender in payment of debts, the 
conviction was impressed on that portion of society 
which had looked to the government for relief from 
embarrassment, that personal exertions alone could 
free them from difficulties; and an increased degree 
of industry and economy was the natural conse- 
quence." 3 

Perhaps the most colorful pages of Marshall's en- 
tire work are those in which he describes the effect of 
the French Revolution on America, and the popular 
hostility to Washington's Proclamation of Neutrality 4 

1 Marshall, v, 241. 2 lb. 243-58. 3 lb. 271. 

4 " That system to which the American government afterwards 
inflexibly adhered, and to which much of the national prosperity is 
to be ascribed." (lb. 408.) 



BIOGRAPHER 2Q5 

and to the treaty with Great Britain negotiated by 
John Jay. 1 

In his treatment of these subjects he reveals some 
of the sources of his distrust of the people. The 
rupture between the United States and the French 
Republic is summarized most inadequately. The 
greatest of Washington's state papers, the immortal 
"Farewell Address," 2 is reproduced in full. The ac- 
count of the X. Y. Z. mission is provokingly incom- 
plete; that of American preparations for war with 
France is less disappointing. Washington's illness 
and death are described with feeling, though in 
stilted language; and Marshall closes his literary 
labors with the conventional analysis of Washing- 
ton's character which the world has since accepted. 3 

Marshall's fifth volume was received with delight 
by the disgruntled Federalist leaders. A letter of 
Chancellor James Kent is typical of their comments. 
"I have just finished . . the last Vol. of Washing- 
ton's Life and it is worth all the rest. It is an excel- 
lent History of the Government and Parties in this 
country from Vol. 3 to the death of the General." 4 

Although it had appeared too late to do them any 
harm at the election of 1804, the Republicans and 
Jefferson felt outraged by Marshall's history of the 
foundation period of the Government. Jefferson said 
nothing for a time, but the matter was seldom out 
of his thoughts. Barlow, it seems, had been laggard 
in writing a history from the Republican point of 
view, as Jefferson had urged him to do. 

1 See vol. n, chaps. I to iv, of this work. 

2 Marshall, v, 685-709. 3 lb. 773. 

♦ James Kent to Moss Kent, July 14, 1807, Kent MSS. Lib. Cong. 



266 JOHN MARSHALL 

Three years had passed since the request had 
been made, and Barlow was leaving for Paris upon 
his diplomatic mission. Jefferson writes his congrat- 
ulations, "yet . . not unmixed with regret. What is 
to become of our past revolutionary history? Of 
the antidotes of truth to the misrepresentations of 
Marshall?" 1 

Time did not lessen Jefferson's bitterness: "Mar- 
shall has written libels on one side," 2 he writes 
Adams, with whom a correspondence is opening, the 
approach of old age having begun to restore good 
relations between these former enemies. Jefferson's 
mind dwells on Marshall's work with increasing anx- 
iety: "On the subject of the history of the Amer- 
ican Revolution . . who can write it?" he asks. He 
speaks of Botta's "History," 3 criticizing its defects; 
but he concludes that "the work is nevertheless a 
good one, more judicious, more chaste, more classi- 
cal, and more true than the party diatribe of Mar- 
shall. Its greatest fault is in having taken too much 
from him." 4 

Marshall's "party diatribe" clung like a burr in 
Jefferson's mind and increased his irritation with the 
passing of the years. Fourteen years after Marshall's 
last volume appeared, Justice William Johnson of 
the Supreme Court published an account of the 

1 Jefferson to Barlow, April 16, 1811, Works: Ford, xi, 205. 

2 Jefferson to Adams, June 15, 1813, ib. 296. 

3 Botta: History of the War of the Independence of the United 
States of America. This work, published in Italian in 1809, was 
not translated into English until 1820; but in 1812-13 a French 
edition was brought out, and that is probably the one Jefferson had 
read. 

4 Jefferson to Adams, Aug, 10, 1815, Works: Ford, xi, 485. 



BIOGRAPHER 267 

period ! covered by Marshall's work, and it was 
severely criticized in the North American Review. 
Jefferson cheers the despondent author and praises 
his "inestimable" history: "Let me . . implore you, 
dear Sir, to finish your history of parties. . . We 
have been too careless of our future reputation, while 
our tories will omit nothing to place us in the wrong." 
For example, Marshall's "Washington," that "five- 
volumed libel, . . represents us as struggling for 
office, and not at all to prevent our government 
from being administered into a monarchy." 2 

In his long introduction to the "Anas," Jefferson 
explains that he would not have thought many of 
his notes "worth preserving but for their testimony 
against the only history of that period which pre- 
tends to have been compiled from authentic and 
unpublished documents." Had Washington himself 
written a narrative of his times from the materials 
he possessed, it would, of course, have been truthful: 
"But the party feeling of his biographer, to whom 
after his death the collection was confided, has 
culled from it a composition as different from what 
Genl. Washington would have offered, as was the 
candor of the two characters during the period of 
the war. 

" The partiality of this pen is displayed in lavish- 
ments of praise on certain military characters, who 
had done nothing military, but who afterwards, & 

1 Johnson: Sketches of the Life and Correspondence of General Na- 
thanael Greene. This biography was even a greater failure than Mar- 
shall's Washington. During this period literary ventures by judges 
seem to have been doomed. 

2 Jefferson to Johnson, March 4, 1823, Works: Ford, xii, 277-78. 



268 JOHN MARSHALL 

before he wrote, had become heroes in party, al- 
tho' not in war; and in his reserve on the merits of 
others, who rendered signal services indeed, but did 
not earn his praise by apostatising in peace from the 
republican principles for which they had fought in 
war/' 

Marshall's frigidity toward liberty "shews itself 
too," Jefferson continues, "in the cold indifference 
with which a struggle for the most animating of 
human objects is narrated. No act of heroism ever 
kindles in the mind of this writer a single aspiration 
in favor of the holy cause which inspired the bosom, 
& nerved the arm of the patriot warrior. No gloom 
of events, no lowering of prospects ever excites a 
fear for the issue of a contest which was to change 
the condition of man over the civilized globe. 

" The sufferings inflicted on endeavors to vindicate 
the rights of humanity are related with all the frigid 
insensibility with which a monk would have con- 
templated the victims of an auto da fe. Let no man 
believe that Gen. Washington ever intended that 
his papers should be used for the suicide of the cause, 
for which he had lived, and for which there never 
was a moment in which he would not have died." 

Marshall's "abuse of these materials," Jefferson 
charges, "is chiefly however manifested in the his- 
tory of the period immediately following the estab- 
lishment of the present constitution; and nearly 
with that my memorandums [the "Anas"] begin. 
Were a reader of this period to form his idea of it 
from this history alone, he would suppose the re- 
publican party (who were in truth endeavoring to 



BIOGRAPHER 269 

keep the government within the line of the Con- 
stitution, and prevent it's being monarchised in 
practice) were a mere set of grumblers, and disor- 
ganisers, satisfied with no government, without fixed 
principles of any, and, like a British parliamentary 
opposition, gaping after loaves and fishes, and ready 
to change principles, as well as position, at any time, 
with their adversaries." * 

Jefferson denounces Hamilton and his followers as 
"monarchists," "corruptionists," and other favorite 
Jeffersonian epithets, and Marshall is again assailed: 
"The horrors of the French revolution, then raging, 
aided them mainly, and using that as a raw head and 
bloody bones they were enabled by their stratagems 
of X. Y. Z. in which this historian was a leading 
mountebank, their tales of tub-plots, Ocean massa- 
cres, bloody buoys, and pulpit lyings, and slander- 
ings, and maniacal ravings of their Gardiners, their 
Osgoods and Parishes, to spread alarm into all but 
the firmest breasts. ' 2 

Criticisms of Marshall's "Life of Washington" 
were not, however, confined to Jefferson and the 
Republicans. Plumer thought the plan of the work 
"preposterous." 3 The Reverend Samuel Cooper 
Thatcher of Boston reviewed the biography through 
three numbers of the Monthly Anthology.* "Every 

1 Works: Ford, i, 165-67. 2 76. 181-82. 

3 Plumer, March 11, 1808, "Diary," Plumer MSS. Lib. Cong. 

4 May, June, and August numbers, 1808, Monthly Anthology and 
Boston Review, v, 259, 322, 434. It appears from the minutes of the 
Anthology Society, publishers of this periodical, that they had a hard 
time in finding a person willing to review Marshall's five volumes. 
Three persons were asked to write the critique and declined. Finally, 
Mr. Thatcher reluctantly agreed to do the work. 



270 JOHN MARSHALL 

reader is surprized to find," writes Mr. Thatcher, 
"the history of North America, instead of the life of 
an individual. . . He [Washington] is always pre- 
sented . . in the pomp of the military or civil cos- 
tume, and never in the ease and undress of private 
life." However, he considers Marshall's fifth volume 
excellent. "We have not heard of a single denial of 
his fidelity. . . In this respect . . his work [is] unique 
in the annals of political history." 

Thatcher concludes that Marshall's just and bal- 
anced treatment of his subject is not due to a care 
for his own reputation: "We are all so full of agita- 
tion and effervescence on political topicks, that a 
man, who keeps his temper, can hardly gain a hear- 
ing." Indeed, he complains of Marshall's fairness: 
he writes as a spectator, instead of as "one, who 
has himself descended into the arena . . and is yet 
red with the wounds which he gave, and smarting 
with those which his enemies inflicted in return"; 
but the reviewer charges that these volumes are 
full of "barbarisms" and "grammatical impurities," 
"newspaper slang," and "unmeaning verbiage." 

The Reverend Timothy Flint thought that Mar- 
shall's work displayed more intellect and labor than 
"eloquence and interest." * George Bancroft, review- 
ing Sparks's " Washington," declared that "all that 
is contained in Marshall is meagre and incomplete in 
comparison." 2 Even the British critics were not so 
harsh as the New York Evening Post, which pro- 
nounced the judgment that if the biography "bears 

1 Flint, in London Athenaeum for 1835, 803. 

2 North American Review, xlvi, 483. 



BIOGRAPHER 271 

any traces of its author's uncommon powers of 
mind, it is in the depths of dulness which he ex- 
plored." 1 

The British critics were, of course, unsparing. 
The Edinburgh Review called Marshall's work "un- 
pardonably deficient in all that constitutes the soul 
and charm of biography. . . We look in vain, 
through these stiff and countless pages, for any 
sketch or anecdote that might fix a distinguishing 
feature of private character in the memory. . . What 
seemed to pass with him for dignity, will, by his 
reader, be pronounced dullness and frigidity." 2 
Blackwood's Magazine asserted that Marshall's 
"Life of Washington" was "a great, heavy book. . . 
One gets tired and sick of the very name of Wash- 
ington before he gets half through these . . prodi- 
gious . . octavos." 3 

Marshall was somewhat compensated for the criti- 
cisms of his work by an event which soon followed 
the publication of his last volume. On August 29, 
1809, he was elected a corresponding member of 
the Massachusetts Historical Society. In a singu- 
larly graceful letter to John Eliot, corresponding 
secretary of the Society at that time, Marshall ex- 
presses his thanks and appreciation. 4 

As long as he lived, Marshall worried over his 
biography of Washington. When anybody praised it, 

1 New York Evening Post, as quoted in Allibone: Dictionary of Eng- 
lish Literature and British and American Authors, n, 1227. 

2 Edinburgh Review, Oct. 1808, as quoted in Randall, n, footnote 
to 40. 

s Blackwood's Edinburgh Magazine, xvn, 179. 

4 Marshall to Eliot, Sept. 20, 1809, MSS. of the Mass. Hist. Soc. 



272 JOHN MARSHALL 

he was as appreciative as a child. In 1827, Archibald 
D. Murphey eulogized Marshall's volumes in an ora- 
tion, a copy of which he sent to the Chief Justice, 
who thanks Murphey, and adds: "That work was 
hurried into a world with too much precipitation, 
but I have lately given it a careful examination 
and correction. Should another edition appear, it will 
be less fatiguing, and more worthy of the character 
which the biographer of Washington ought to sus- 
tain." 1 

Toilsomely he kept at his self-imposed task of re- 
vision. In 1816, Bushrod Washington wrote Wayne 
to send Marshall "the last three volumes in sheets 
(the two first he has) that he may devote this winter 
to their correction." 2 

When, five years later, the Chief Justice learned 
that Wayne was actually considering the risk of 
bringing out a new edition, Marshall's delight was 
unbounded. "It is one of the most desirable ob- 
jects I have in this life to publish a corrected edition 
of that work. I would not on any terms, could I 
prevent it, consent that one other set of the first 
edition should be published." 3 

Finally, in 1832, the revised biography was pub- 
lished. Marshall clung to the first volume, which was 
issued separately under the title "History of the 
American Colonies." The remaining four volumes 
were, seemingly, reduced to two; but they were so 
closely printed and in such comparatively small 

1 Marshall to Murphey, Oct. 6, 1827, Papers of Archibald D. 
Murphey: Hoyt, i, 365-66. 

2 Washington to Wayne, Nov. 26, 1816, Dreer MSS. loc. cit. 

3 Marshall to Washington, Dec. 27, 1821, MS. 



BIOGRAPHER 273 

type that the real condensation was far less than it 
appeared to be. The work was greatly improved, 
however, and is to this day the fullest and most 
trustworthy treatment of that period, from the con- 
servative point of view. 1 

Fortunately for Marshall, the work required of 
him on the Bench gave him ample leisure to devote 
to his literary venture. During the years he con- 
sumed in writing his "Life of Washington" he wrote 
fifty-six opinions in cases decided in the Circuit 
Court at Richmond, and in twenty-seven cases de- 
termined by the Supreme Court. Only four of them 2 
are of more than casual interest, and but three of 
them 3 are of any historical consequence. All the 
others deal with commercial law, practice, rules of 
evidence, and other familiar legal questions. In only 
one case, that of Marbury vs. Madison, was he called 
upon to deliver an opinion that affected the institu- 
tions and development of the Nation. 

1 So popular did this second edition become that, three years after 
Marshall's death, a little volume, The Life of Washington, was pub- 
lished for school-children. The publisher, James Crissy of Philadel- 
phia, states that this small volume is "printed from the author's own 
manuscript," thus intimating that Marshall had prepared it. (See 
Marshall, school ed.) 

2 Talbot vs. Seeman, United States vs. Schooner Peggy, Marbury 
vs. Madison, and Little vs. Barreme. 

* The first three in above note. 



CHAPTER VI 

THE BURR CONSPIRACY 

My views are such as every man of honor and every good citizen must 

approve. (Aaron Burr.) 

His guilt is placed beyond question. (Jefferson.) 

I never believed him to be a Fool. But he must be an Idiot or a Lunatic if he 

has really planned and attempted to execute such a Project as is imputed to 

him. But if his guilt is as clear as the Noonday Sun, the first Magistrate ought 

not to have pronounced it so before a Jury had tryed him. (John Adams.) 

On March 2, 1805, not long after the hour of noon, 
every Senator of the United States was in his seat in 
the Senate Chamber. All of them were emotionally 
affected — some were weeping. 1 Aaron Burr had 
just finished his brief extemporaneous address 2 of 
farewell. He had spoken with that grave earnestness 
so characteristic of him. 3 His remarks produced a 

1 "We were all deeply affected, and many shed tears." (Plumer 
to his wife, March 2, 1805, Plumer, 331; and see Memoirs, J. Q. A,: 
Adams, I, 367.) 

"Tears did flow abundantly." (Burr to his daughter, March 13, 
1805, Davis, n, 360.) 

2 "There was nothing written or prepared. . . It was the solemnity, 
the anxiety, the expectation, and the interest which I saw strongly 
painted in the countenances of the auditors, that inspired whatever 
was said." (lb. 360.) 

3 The speech, records the Washington Federalist, which had been 
extremely abusive of Burr, "was said to be the most dignified, sublime 
and impressive that ever was uttered." 

"His address . . was delivered with great force and propriety." 
(Plumer to his wife, March 2, 1805, Plumer, 331.) 

" His speech . . was delivered with great dignity. . . It was listened 
to with the most earnest and universal attention." (Memoirs, J. Q. A.: 
Adams, I, 367.) Burr made a profound impression on John Quincy 
Adams. "There was not a member present but felt the force of this 
solemn appeal to his sense of duty." (J. Q. Adams to his father, 
March 14, 1805, Writings, J. Q. A.: Ford, m, 119.) 

The franking privilege was given Burr for life, a courtesy never before 



THE BURR CONSPIRACY 275 

curious impression upon the seasoned politicians and 
statesmen, over whose deliberations he had presided 
for four years. The explanation is found in Burr's 
personality quite as much as in the substance of his 
speech. From the unprecedented scene in the Senate 
Chamber when the Vice-President closed, a stranger 
would have judged that this gifted personage held 
in his hands the certainty of a great and brilliant 
career. Yet from the moment he left the Capital, 
Aaron Burr marched steadily toward his doom. 

An understanding of the trial of Aaron Burr and 
of the proceedings against his agents, Bollmann and 
Swartwout, is impossible without a knowledge of the 
events that led up to them; while the opinions and 
rulings of Chief Justice Marshall in those memorable 
controversies are robbed of their color and much of 
their meaning when considered apart from the pic- 
turesque circumstances that produced them. This 
chapter, therefore, is an attempt to narrate and con- 
dense the facts of the Burr conspiracy in the light of 
present knowledge of them. 

Although in a biography of John Marshall it 
seems a far cry to give so much space to that episode, 
the import of the greatest criminal trial in American 
history is not to be fully grasped without a sum- 
mary of the events preceding it. Moreover, the fact 
that in the Burr trial Marshall destroyed the law 
of "constructive treason" requires that the circum- 
stances of the Burr adventure, as they appeared to 
Marshall, be here set forth. 

extended except to a President of the United States and Mrs. Wash- 
ington. (See Hillhouse's speech, Annals, 10th Cong. 1st Sess. 272.) 



276 JOHN MARSHALL 

A strong, brave man who, until then, had served 
his country well, Aaron Burr was in desperate 
plight when on the afternoon of March 2 he walked 
along the muddy Washington streets toward his 
lodging. He was a ruined man, financially, politi- 
cally , and in reputation. Fourteen years of politics 
had destroyed his once extensive law practice and 
plunged him hopelessly into debt. The very men 
whose political victory he had secured had com- 
bined to drive him from the Republican Party. 

The result of his encounter with Hamilton had 
been as fatal to his standing with the Federalists, 
who had but recently fawned upon him, as it was 
to the physical being of his antagonist. What now 
followed was as if Aaron Burr had been the pre- 
destined victim of some sinister astrology, so utterly 
did the destruction of his fortunes appear to be the 
purpose of a malign fate. 

His fine ancestry now counted for nothing with 
the reigning politicians of either party. None of 
them cared that he came of a family which, on both 
sides, was among the worthiest in all the country. 1 
His superb education went for naught. His brilliant 
services as one of the youngest Revolutionary offi 
cers were no longer considered — his heroism at 
Quebec, his resourcefulness on Putnam's staff, his 
valor at Monmouth, his daring and tireless efficiency 
at West Point and on the Westchester lines, were, to 
these men, as if no such record had ever been written. 

Nor, with those then in power, did Burr's notable 

1 His father was the President of Princeton. His maternal grand- 
father was Jonathan Edwards. 




AARON BURR 



THE BURR CONSPIRACY 277 

public services in civil life weigh so much as a feather 
in his behalf. They no longer remembered that only 
a few years earlier he had been the leader of his 
party in the National Senate, and that his appoint- 
ment to the then critically important post of Min- 
ister to France had been urged by the unanimous 
caucus of his political associates in Congress. None 
of the notable honors that admirers had asserted 
to be his due, nor yet his effective work for his party, 
were now recalled. The years of provocation * which 

1 Hamilton's pursuit of Burr was lifelong and increasingly venom- 
ous. It seems incredible that a man so transcendently great as Hamil- 
ton — easily the foremost creative mind in American statesmanship 
— should have succumbed to personal animosities such as he dis- 
played toward John Adams, and toward Aaron Burr. 

The rivalry of Hamilton and Burr began as young attorneys at the 
New York bar, where Burr was the only lawyer considered the equal 
of Hamilton. Hamilton's open hostility, however, first showed itself 
when Burr, then but thirty-five years of age, defeated Hamilton's 
father-in-law, Philip Schuyler, for the United States Senate. The 
very next year Hamilton prevented Burr from being nominated and 
elected Governor of New York. Then Burr was seriously considered 
for Vice-President, but Hamilton also thwarted this project. 

When Burr was in the Senate, the anti-Federalists in Congress unan- 
imously recommended him for the French Mission ; and Madison and 
Monroe, on behalf of their colleagues, twice formally urged Burr's 
appointment. Hamilton used his influence against it, and the appoint- 
ment was not made. At the expiration of Burr's term in the Senate, 
Hamilton saw to it that he should not be chosen again and Hamilton's 
father-in-law this time succeeded. 

President Adams, in 1798, earnestly desired to appoint Burr to the 
office of Brigadier-General under Washington in the provisional army 
raised for the expected war with France. Hamilton objected so stren- 
uously that the President was forced to give up his design. (See 
Adams to Rush, Aug. 25, 1805, Old Family Letters, 77; and same to 
same, June 23, 1807, ib. 150.) 

In the Presidential contest in the House in 1801 (see vol. n, 533-38, 
of this work), Burr, notwithstanding his refusal to do anything in his 
own behalf (ib. 539-47), would probably have been elected instead of 
Jefferson, had not Hamilton savagely opposed him. (76.) 

When, in 1804, Burr ran for Governor of New York, Hamilton 



278 JOHN MARSHALL 

had led, in an age of dueling, 1 to a challenge of his 
remorseless personal, professional, and political en- 
emy were now unconsidered in the hue and cry raised 
when his shot, instead of that of his foe, proved 
mortal. 

Yet his spirit was not broken. His personal friends 
stood true; his strange charm was as potent as ever 
over most of those whom he met face to face; and 
throughout the country there were thousands who 
still admired and believed in Aaron Burr. Particu- 
larly in the West and in the South the general sen- 
timent was cordial to him; many Western Senators 
were strongly attached to him; and most of his 
brother officers of the Revolution who had settled 
beyond the Alleghanies were his friends. 2 Also, he 
was still in vigorous middle life, and though delicate 
of frame and slight of stature, was capable of greater 
physical exertion than most men of fewer years. 

What now should the dethroned political leader 
do? Events answered that question for him, and, 

again attacked him. It was for one of Hamilton's assaults upon him 
during this campaign that Burr challenged him. (See Parton : Life 
and Times of Aaron Burr, 339 el seq.; also Adams: U.S. n, 185 et seq.; 
and Private Journal of Aaron Burr, reprinted from manuscript in 
the library of W. K. Bixby, Introduction, iv-vi.) So prevalent was 
dueling that, but for Hamilton's incalculable services in founding 
the Nation and the lack of similar constructive work by Burr, the 
hatred of Burr's political enemies and the fatal result of the duel, 
there certainly would have been no greater outcry over the encounter 
than over any of the similar meetings between public men during 
that period. 

1 Dueling continued for more than half a century. Many of the 
most eminent of Americans, such as Clay, Randolph, Jackson, and 
Benton, fought on "the field of honor." In 1820 a resolution against 
dueling, offered in the Senate by Senator Morrill of New Hampshire, 
was laid on the table. (Annals, 16th Cong. 1st Sess. 630, 636.) 

2 McCaleb: Aaron Burr Conspiracy, 19; Parton: Burr, 382. 



THE BURR CONSPIRACY 279 

beckoned forward by an untimely ambition, he fol- 
lowed the path that ended amid dramatic scenes in 
Richmond, Virginia, where John Marshall presided 
over the Circuit Court of the United States. 

Although at the time Jefferson had praised what 
he called Burr's "honorable and decisive conduct " l 
during the Presidential contest in the House in Feb- 
ruary of 1801, he had never forgiven his associate 
for having received the votes of the Federalists, 
nor for having missed, by the merest chance, elec- 
tion as Chief Magistrate. 2 Notwithstanding that 
Burr's course as Vice-President had won the admira- 
tion even of enemies, 3 his political fall was decreed 
from the moment he cast his vote on the Judiciary 
Bill in disregard of the rigid party discipline that 
Jefferson and the Republican leaders then exacted. 4 

Even before this, the constantly increasing frigid- 
ity of the President toward him, and the refusal of 
the Administration to recognize by appointment any 
cne recommended by him for office in New York, 5 
had made it plain to all that the most Burr could 
expect was Jefferson's passive hostility. Under these 
circumstances, and soon after his judiciary vote, the 
spirited Vice-President committed another impru- 

1 Vol. II, 545, of this work. 2 Adams: U.S. I, 331. 

3 " His official conduct in the Senate . . has fully met my approba- 
tion," testifies the super-critical Plumer in a letter to his wife March % 
1805. (Plumer, 331.) 

4 "Burr is completely an insulated man." (Sedgwick to King, Feb. 
20, 1802, King, iv, 74.) 

"Burr has lost ground very much with Jefferson's sect during the 
present session of Congress. . . He has been not a little abused . . in the 
democratic prints." (Troup to King, April 9, 1802, King, iv, 103.) 

Also see supra, chap, n; Adams: U.S. i, 280; and Parton: Burr, 30ft. 

5 Adams: U.S. i, 230-33; Channing: Jeff. System, 17-19. 



280 JOHN MARSHALL 

dence. He attended a banquet given by the Fed- 
eralists in honor of Washington's birthday. There 
he proposed this impolitic toast: "To the union 
of all honest men." Everybody considered this a 
blow at Jefferson. It was even more offensive to the 
Administration than his judiciary vote had been. 1 

From that moment all those peculiar weapons 
which politicians so well know how to use for the 
ruin of an opponent were employed for the destruc- 
tion of Aaron Burr. Moreover, Jefferson had de- 
cided not only that Burr should not again be Vice- 
President, but that his bitterest enemy from his own 
State, George Clinton, should be the Republican can- 
didate for that office; and, in view of Burr's strength 
and resourcefulness, this made necessary the latter's 
political annihilation. 2 " Never in the history of the 
United States did so powerful a combination of rival 
politicians unite to break down a single man as that 
which arrayed itself against Burr." 3 

Nevertheless, Burr, who "was not a vindictive 
man," 4 did not retaliate for a long time. 6 But at last 

1 " Burr is a gone man; . . Jefferson is really in the dust in point of 
character, but notwithstanding this, he is looked up to . . as the Gog 
and Magog of his party." (Troup to King, Dec. 12, 1802, King, iv, 
192-93.) See also Adams: U.S. i, 282. 

2 Channing: Jeff. System, 18-19. 3 Adams: U.S. I, 332. 

4 Adams: U.S. n, 185. 

"He was accused of this and that, through all of which he main- 
tained a resolute silence. It was a characteristic of his never to refute 
charges against his name. . . It is not shown that Burr ever lamented 
or grieved over the course of things, however severely and painfully 
it pressed upon him." (McCaleb, 19.) See also Parton: Burr, 336. 

5 "Burr . . is acting a little and skulking part. Although Jefferson 
hates him as much as one demagogue can possibly hate another who 
is aiming to rival him, yet Burr does not come forward in an open and 
manly way agt. him. . . Burr is ruined in politics as well as in fortune." 
(Troup to King, Aug. 24, 1802, King, iv, 160.) 



THE BURR CONSPIRACY 281 

to retrieve himself, 1 he determined to appeal to the 
people — at whose hands he had never suffered de- 
feat — and, in 1804, he became a candidate for the 
office of Governor of New York. The New York 
Federalists, now reduced to a little more than a 
strong faction, wished to support him, and were 
urged to do so by many Federalist leaders of other 
States. Undoubtedly Burr would have been elected 
but for the attacks of Hamilton. 

At this period the idea of secession was stirring in 
the minds of the New England Federalist leaders. 
Such men as Timothy Pickering, Roger Griswold, 
Uriah Tracy, and James Hillhouse had even avowed 
separation from the Union to be desirable and cer- 
tain; and talk of it was general. 2 All these men were 
warm and insistent in their support of Burr for 
Governor, and at least two of them, Pickering and 
Griswold, had a conference with him in New York 
while the campaign was in progress. 

Plumer notes in his diary that during the winter 
of 1804, at a dinner given in Washington attended 
by himself, Pickering, Hillhouse, Burr, and other 
public men, Hillhouse "unequivocally declared that 
. . the United States would soon form two distinct 
and separate governments." 3 More than nine 
months before, certain of the most distinguished 
New England Federalists had gone to the extreme 
length of laying their object of national dismember- 
ment before the British Minister, Anthony Merry, 

1 Davis, ii, 89 et seq.; Adams: U.S. 1, 332-33; McCaleb, 20; Partem: 
Burr, 327 et seq. 

2 See sutpra, 150-52, and vol. iv, chap. I, of this work. 
1 Plumer, 295. 



282 JOHN MARSHALL 

and had asked and received his promise to aid them 
in their project of secession. 1 

There was nothing new in the idea of dismember- 
ing the Union. Indeed, no one subject was more 
familiar to all parts of the country. Since before the 
adoption of the Constitution, it had been rife in the 
settlements west of the Alleghanies. 2 The very year 
the National Government was organized under the 
Constitution, the settlers beyond the Alleghanies 
were much inclined to withdraw from the Union be- 
cause the Mississippi River had not been secured to 
them. 3 For many years this disunion sentiment grew 
in strength. When, however, the Louisiana Purchase 
gave the pioneers on the Ohio and the Mississippi a 

1 It appears that some of the New England Federalists urged upon 
the British Minister the rejection of the articles of the Boundary 
Treaty in retaliation for the Senate's striking out one article of that 
Convention. They did this, records the British Minister, because, as 
they urged, such action by the British Government "would prove to be 
a great exciting cause to them [the New England Secessionists] to go 
forward rapidly in the steps which they have already commenced to- 
ward a separation from the Southern part of the Union. 

"The [Federalist] members of the Senate," continues Merry, "have 
availed themselves of the opportunity of their being collected here to 
hold private meetings on this subject, and . . their plans and calcula- 
tions respecting the event have been long seriously resolved. . . They 
naturally look forward to Great Britain for support and assistance 
whenever the occasion shall arrive." (Merry to Hawkesbury, March 
1, 1804, as quoted in Adams: U.S. n, 392.) 

2 As early as 1784, Washington declared that he feared the effect on 
the Western people " if the Spaniards on their right, and Great Britain 
on their left, instead of throwing impediments in their way as they 
now do, should hold out lures for their trade and alliance. . . The 
western settlers (I speak now from my own observations) stand as it 
were, upon a pivot. The touch of a feather would turn them any way. 
. . It is by the cement of interest alone we can be held together." 
(Washington to the Governor of Virginia, 1784, as quoted in Mar- 
shall, v, 15-16.) 

3 Marshall, v, 179. 



THE BURR CONSPIRACY 283 

free water-way to the Gulf and the markets of the 
world, the Western secessionist tendency disap- 
peared. But after the happy accident that bestowed 
upon us most of the great West as well as the mouth 
of the Mississippi, there was in the Eastern States 
a widely accepted opinion that this very fact made 
necessary the partitioning of the Republic. 

Even Jefferson, as late as 1803, did not think that 
outcome unlikely, and he was prepared to accept it 
with his blessing: "If they see their interest in sepa- 
ration, why should we take sides with our Atlantic 
rather than our Mississippi descendants? It is the 
elder and the younger brother differing. God bless 
them both, and keep them in union, if it be for their 
good, but separate them, if it be better." * 

Neither Spain nor Great Britain had ever given 
over the hope of dividing the young Republic and 
of acquiring for themselves portions of its territory. 
The Spanish especially had been active and unceas- 
ing in their intrigues to this end, their efforts being 
directed, of course, to the acquisition of the lands 
adjacent to them and bordering on the Mississippi 
and the Ohio. 2 In this work more than one American 
was in their pay. Chief of these Spanish agents was 
James Wilkinson, who had been a pensioner of Spain 
from 1787, 3 and so continued until at least 1807, the 
bribe money coming into his hands for several years 

1 Jefferson to Breckenridge, Aug. 12, 1803, Works: Ford, x, foot- 
notes to 5-6. 

2 See Shepherd in Am. Hist. Rev. vin, 501 et seq.; also ib. rx, 748 
et seq. 

8 Clark: Proofs of the Corruption of Gen. James Wilkinson, 11-12, 
16, 18-24, and documents therein referred to and printed in the ap* 
pendix to Clark's volume. 



284 JOHN MARSHALL 

after he had been placed in command of the armies 
of the United States. 1 

None of these plots influenced the pioneers to 
wish to become Spanish subjects; the most that they 
ever desired, even at the height of their dissatis- 
faction with the American Government, was inde- 
pendence from what they felt to be the domination 
of the East. In 1796 this feeling reached its climax 
in the Kentucky secession movement, one of its 
most active leaders being Wilkinson, who declared 
his purpose of becoming "the Washington of the 
West." 2 

By 1805, however, the allegiance of the pioneers 
to the Nation was as firm as that of any other part 
of the Republic. They had become exasperated to 
the point of violence against Spanish officials, Span- 
ish soldiers, and the Spanish Government. They 
regarded the Spanish provinces of the Floridas and 
of Mexico as mere satrapies of a hated foreign au- 
tocracy; and this indeed was the case. Everywhere 
west of the Alleghanies the feeling was universal 

1 "Wilkinson is entirely devoted to us. He enjoys a considerable 
pension from the King." (Casa Yrujo, Spanish Minister, to Cevallos, 
Jan. 28, 1807, as quoted in Adams: U.S. in, 342.) And see affidavits 
of Mercier and Derbigny, Blennerhassett Papers: Safford, footnotes 
to 429, 432. 

"He [Wilkinson] had acted conformably as suited the true interests 
of Spain, and so I assured him for his satisfaction." (Folch, Spanish 
Governor of Florida, to the Governor-General of Cuba, June 25, 1807, 
as quoted by Cox in Am. Hist. Rev. x, 839.) 

2 Parton: Burr, 383; see also McCaleb, 4-9. 

It should be borne in mind that this was the same Wilkinson who 
took so unworthy a part in the "Conway Cabal" against Washington 
during the Revolution. (See vol. I, 121-23, of this work.) 

For further treatment of the Spanish intrigue, see Cox in Am. Hist. 
Rev. xrx, 794-812; also Cox in Southwestern Historical Quarterly, xvn, 
140-87. 



THE BURR CONSPIRACY 285 

that these lands on the south and southwest, held in 
subjection by an ancient despotism, should be "rev- 
olutionized" and "liberated"; and this feeling was 
shared by great numbers of people of the Eastern 
States. 

Moreover, that spirit of expansion — of taking 
and occupying the unused and misused lands upon 
our borders — which has been so marked through 
American history, was then burning fiercely in every 
Western breast. The depredations of the Spaniards 
had finally lashed almost to a frenzy the resentment 
which had for years been increasing in the States 
bordering upon the Mississippi. All were anxious 
to descend with fire and sword upon the offending 
Spaniards. 

Indeed, all over the Nation the conviction was 
strong that war with Spain was inevitable. Even 
the ultra-pacific Jefferson was driven to this con- 
clusion; and, in less than ten months after Aaron 
Burr ceased to be Vice-President, and while he was 
making his first journey through the West and 
Southwest, the President, in two Messages to Con- 
gress, scathingly arraigned Spanish misdeeds and 
all but avowed that a state of war actually existed. 1 

Such, in broad outline, was the general state of 
things when Aaron Burr, his political and personal 
fortunes wrecked, cast about for a place to go and for 
work to do. He could not return to his practice in 
New York; there his enemies were in absolute con- 
trol and he was under indictment for having chal- 

1 Annual Message, Dec. 3, 1805, and Special Message, Dec. 6, 1805, 
Richardson, i, 384-85, 388-89. 



286 JOHN MARSHALL 

lenged Hamilton. The coroner's jury also returned 
an inquest of murder against Burr and two of his 
friends, and warrants for their arrest were issued. In 
New Jersey, too, an indictment for murder hung 
over him. 1 

Only in the fresh and undeveloped West did a new 
life and a new career seem possible. Many projects 
filled his mind — everything was possible in that in- 
viting region beyond the mountains. He thought of 
forming a company to dig a canal around the falls 
of the Ohio and to build a bridge over that river, 
connecting Louisville with the Indiana shore. He 
considered settling lands in the vast dominions be- 
yond the Mississippi which the Nation had newly 
acquired from Spain. A return to public life as 
Representative in Congress from Tennessee passed 
through his mind. 

But one plan in particular fitted the situation 
which the apparently certain war with Spain cre- 
ated. Nearly ten years earlier, 2 Hamilton had 
conceived the idea of the conquest of the Spanish 
possessions adjacent to us, and he had sought to 
enlist the Government in support of the project of 
Miranda to revolutionize Venezuela. 3 Aaron Burr 
had proposed the invasion and capture of the 
Floridas, Louisiana, and Mexico two years before 

1 See Memoirs, J. Q. A.: Adams, I, 314-15. 

Burr wrote: "In New- York I am to be disfranchised, and in New- 
Jersey hanged" but "you will not . . conclude that I have become 
disposed to submit tamely to the machinations of a banditti." Burr 
to his son-in-law, March 22, 1805, Davis, n, 365. 

2 1797-98. 

3 Lodge: Alexander Hamilton, 212-15; and see Turner in Am. Hist., 
Rev. x, 276. 



THE BURR CONSPIRACY 287 

Hamilton embraced the project, 1 and the desire to 
carry out the plan continued strong within him. Cir- 
cumstances seemed to make the accomplishment of 
it feasible. At all events, a journey through the 
West would enlighten him, as well as make clearer 
the practicability of his other schemes. 

Now occurred the most unfortunate and disgrace- 
ful incident of Burr's life. In order to get money 
for his Mexican adventure, Burr played upon the 
British Minister's hostile feelings toward America 
and, in doing so, used downright falsehood. Al- 
though it was unknown at the time and not out of 
keeping with the unwritten rules of the game called 
diplomacy as then played, and although it had no 
effect upon the thrilling events that brought Burr 
before Marshall, so inextricably has this shameful 
circumstance been woven into the story of the Burr 
conspiracy, that mention of it must be made. It 
was the first thoroughly dishonorable act of Burr's 
tempestuous career. 2 

1 Davis, n, 376-79. 

2 Only one previous incident in Burr's public life can even be faintly 
criticized from the point of view of honesty. In 1799 there were in New 
York City but two banking institutions, and both were controlled by 
Federalists. These banks aided business men of the Federalist Party 
and refused accommodation to Republican business men. The Feder- 
alists controlled the Legislature and no State charter for another bank 
in New York could be had. 

Burr, as a member of the State Senate, secured from the Legislature 
a charter for the Manhattan Company to supply pure water to the 
city; but this charter authorized the use by the company of its surplus 
capital in any lawful way it pleased. Thus was established a new bank 
where Republican business men could get loans. Burr, in committee, 
frankly declared that the surplus was to establish a bank, and Gover- 
nor Jay signed the bill. Although the whole project appears to have 
been open and aboveboard as far as Burr was concerned, yet when the 
bank began business, a violent attack was made on him. (Parton: 
Burr, 237-40.) 



288 JOHN MARSHALL 

Five months after Pickering, Griswold, and other 
New England Federalists had approached Anthony 
Merry with their plan to divide the Union, Burr 
prepared to follow their example. He first sounded 
that diplomat through a British officer, one Colonel 
Charles Williamson. The object of the New England 
Senators and Representatives had been to separate 
their own and other Northern States from the Union ; 
the proposition that Williamson now made to the 
British Minister was that Burr might do the same 
thing for the Western States. 1 It was well known 
that the break-up of the Republic was expected and 
hoped for by the British Government, as well as 
by the Spaniards, and Williamson was not surprised 
when he found Merry as favorably disposed toward 
a scheme for separation of the States beyond the 
Alleghanies as he had been hospitable to the plan 
for the secession of New England. 

Of the results of this conference Burr was advised; 
and when he had finished his preparations for his 
journey down the Ohio, he personally called upon 
Merry. This time a part of his real purpose was 
revealed; it was to secure funds. 2 Burr asked that 
half a million dollars be supplied him 3 for the revo- 
lutionizing of the Western States, but he did not 
tell of his dream about Mexico, for the realization of 
which the money was probably to be employed. In 
short, Burr lied; and in order to persuade Merry to 

1 Merry to Harrowby, Aug. 6, 1804, as quoted in Adams: U.S. II, 
395. 

2 McCaleb, viii-ix, 20-23. 

3 Merry to Harrowby (No. 15), "most secret," March 29, 1805, 
as quoted in Adams: U.S. II, 403. 



THE BURR CONSPIRACY 289 

secure for him financial aid he proposed to com- 
mit treason. Henry Adams declares that, so far as 
the proposal of treason was concerned, there was 
no difference between the moral delinquency of 
Pickering, Griswold, Hillhouse, and other Federal- 
ists and that of Aaron Burr. 1 

The eager and credulous British diplomat prom- 
ised to do his best and sent Colonel Williamson on a 
special mission to London to induce Pitt's Ministry 
to make the investment. 2 It should be repeated that 
Burr's consultations with the shallow and easily de- 
ceived Merry were not known at the time. Indeed, 
they never were fully revealed until more than three 
quarters of a century afterward. 3 Moreover, it has 
been demonstrated that they had little or no bear- 
ing upon the adventure which Burr finally tried to 
carry out. 4 He was, as has been said, audaciously 
and dishonestly playing upon Merry's well-known 
hostility to this country in order to extract money 
from the British Treasury. 5 This attempt and the 
later one upon the Spanish Minister, who was 
equally antagonistic to the United States, were 
revolting exhibitions of that base cunning and du- 

1 Adams: U.S. n, 394. 2 Davis, II, 381; also Parton: Burr, 412. 

3 Henry Adams, in his researches in the British and Spanish 
archives, discovered and for the first time made public, in 1890, the 
dispatches of the British, Spanish, and French Ministers to their 
Governments. (See Adams: U.S. in, chaps, xm and xiv.) 

4 Professor Walter Flavius McCaleb has exploded the myth as to 
Burr's treasonable purposes, which hitherto has been accepted as 
history. His book, the Aaron Burr Conspiracy, may be said to be 
the last word on the subject. The lines which Professor McCaleb 
has therein so firmly established have been followed in this chapter. 

6 Pitt died and Burr did not get any money from the British. (See 
Davis, ii, 381.) 



290 JOHN MARSHALL 

plicity which, at that period, formed so large a part 
of secret international intrigue. 1 

On April 10, 1805, Burr left Philadelphia on horse- 
back for Pittsburgh, where he arrived after a nine- 
teen days' journey. Before starting he had talked 
over his plans with several friends, among them 
former Senator Jonathan Dayton of New Jersey, 
who thereafter was a partner and fellow " conspir- 
ator." 2 

Another man with whom Burr had conferred was 
General James Wilkinson. Burr expected to meet 
him at Pittsburgh, but the General was delayed and 
the meeting was deferred. Wilkinson had just been 
appointed Governor of Upper Louisiana — one of 
the favors granted Burr during the Chase impeach- 
ment — and was the intimate associate of the fallen 
politician in his Mexican plan until, in a welter of 
falsehood and corruption, he betrayed him. Indeed, 
it was Wilkinson who, during the winter of 1804-05, 
when Burr was considering his future, proposed to 
him the invasion of Mexico and thus gave new life 
to Burr's old but never abandoned hope. 3 

On May 2, Burr started down the Ohio. When he 

1 "Burr's intrigue with Merry and Casa Yrujo was but a consum- 
mate piece of imposture." (McCaleb, viii.) 

2 Up to this time Dayton had had an honorable career. He had 
been a gallant officer of the Revolution; a member of the New Jersey 
Legislature for several years and finally Speaker of the House; a dele- 
gate to the Constitutional Convention ; a Representative in Congress 
for four terms, during the last two of which he was chosen Speaker of 
that body; and finally Senator of the United States. He came of a dis- 
tinguished family, was a graduate of Princeton, and a man of high 
standing politically and socially. 

3 See Cox in Am. Hist. Rev. xrx, 801; also in Southwestern Hist 
Quarterly, xvn, 174. 



THE BURR CONSPIRACY 291 

Teached Marietta, Ohio, he was heartily welcomed. 
He next stopped at an island owned by Harman 
Blennerhassett, who happened to be away. While 
inspecting the grounds Burr was invited by Mrs. 
Blennerhassett to remain for dinner. Thus did 
chance lay the foundations for that acquaintance 
which, later, led to a partnership in the enterprise 
that was ended so disastrously for both. 

At Cincinnati, then a town of some fifteen hundred 
inhabitants, the attentions of the leading citizens 
were markedly cordial. There Burr was the guest 
of John Smith, then a Senator from Ohio, who had 
become attached to Burr while the latter was Vice- 
President, and who was now one of his associates in 
the plans under consideration. At Smith's house he 
met Dayton, and with these friends and partners 
he held a long conversation on the various schemes 
they were developing. 1 

A week later found him at the "unhealthy and in- 
considerable village" 2 of Louisville and from there 
he traveled by horseback to Frankfort and Lexing- 
ton. While in Kentucky he conferred with General 
John Adair, then a member of the National Senate, 

1 That Burr, Dayton, and others seriously thought of building a 
canal around the falls of the Ohio on the Indiana side, is proved by an 
act passed by the Legislature of Indiana Territory in August, 1805, 
and approved by Governor William Henry Harrison on the 24th of 
that month. The act — entitled "An Act to Incorporate the Indiana 
Canal Company" — is very elaborate, authorizes a capital of one 
million dollars, and names as directors George Rogers Clark, John 
Brown, Jonathan Dayton, Aaron Burr, Benjamin Hovey, Davis 
Floyd, and six others. (See Laws of the Indiana Territory, 1801-1806, 
94-108.) The author is indebted to Hon. Merrill Moores, M.C., of 
Indianapolis, for the reference to this statute. 

1 Hildreth, v. 597. 



292 JOHN MARSHALL 

who, like Smith and Dayton, had in Washington 
formed a strong friendship for Burr, and was his 
confidant. 1 Another eminent man with whom he 
consulted was John Brown, then a member of the 
United States Senate from Kentucky, also an ad- 
mirer of Burr. 

It would appear that the wanderer was then seri- 
ously considering the proposal, previously made by 
Matthew Lyon, now a Representative in Congress 
from Kentucky, that Burr should try to go to the 
National House from Tennessee, 2 for Burr asked and 
received from Senator Brown letters to friends in 
that State who could help to accomplish that de- 
sign. But not one word did Burr speak to General 
Adair, to Senator Brown, or to any one else of his 
purpose to dismember the Nation. 

Burr arrived at Nashville at the end of the month. 
The popular greeting had grown warmer with each 
stage of his journey, and at the Tennessee Capital 
it rose to noisy enthusiasm. Andrew Jackson, then 
Major-General of the State Militia, was especially 
fervent and entertained Burr at his great log house. 
A "magnificent parade" was organized in his honor. 
From miles around the pioneers thronged into the 

1 Adair had been a soldier in the Revolutionary War, an Indian 
fighter in the West, a member of the Kentucky Constitutional Con- 
vention, Speaker of the House of Representatives of that State, Regis- 
trar of the United States Land Office, and was one of the ablest, most 
trusted, and best beloved of Kentuckians. 

Adair afterward declared that " the intentions of Colonel Burr . . 
were to prepare and lead an expedition into Mexico, predicated on a 
war" between Spain and the United States; "without a war he knew 
he could do nothing." If war did not come he expected to settle the 
Washita lands. (Davis, n, 380.) 

2 See McCaleb, 25; Parton: Burr, 385-86. 



THE BURR CONSPIRACY 293 

frontier Capital. Flags waved, fifes shrilled, drums 
rolled, cannon thundered. A great feast was spread 
and Burr addressed the picturesque gathering. 1 
Never in the brightest days of his political success 
had he been so acclaimed. Jackson, nine years be- 
fore, when pleading with Congress to admit Ten- 
nessee into the Union, had met and liked Burr, who 
had then advocated statehood for that vigorous and 
aggressive Southern Territory. Jackson's gratitude 
for Burr's services to the State in championing its 
admission, 2 together with his admiration for the 
man, now ripened into an ardent friendship. 

His support of Burr well reflected that of the 
people among whom the latter now found himself. 
Accounts of Burr's conduct as presiding officer at 
the trial of Chase had crept through the wilderness; 
the frontier newspapers were just printing Burr's 
farewell speech to the Senate, and descriptions of 
the effect of it upon the great men in Washington 
were passing from tongue to tongue. All this gilded 
the story of Burr's encounter with Hamilton, which, 
from the beginning, had been applauded by the 
people of the West and South. 

Burr was now in a land of fighting men, where 
dueling was considered a matter of honor rather than 
disgrace. He was in a rugged democracy which re- 
garded as a badge of distinction, instead of shame, 
the killing in fair fight of the man it had been taught 
to believe to be democracy's greatest foe. Here, said 
these sturdy frontiersmen, was the captain so long 

1 McCaleb, 26; Parton: Life of Andrew Jackson, i, 307-10. 

2 Parton: Jackson, i, 309. 



294 JOHN MARSHALL 

sought for, who could lead them in the winning of 
Texas and Mexico for America; and this Burr now 
declared himself ready to do — a purpose which 
added the final influence toward the conquest of the 
mind and heart of Andrew Jackson. 

Floating down the Cumberland River in a boat 
provided by Jackson, Burr encountered nothing but 
friendliness and encouragement. At Fort Massac he 
was the guest of Wilkinson, with whom he remained 
for four days, talking over the Mexican project. Soon 
afterward he was on his way down the Mississippi 
from St. Louis in a larger boat with colored sails, 
manned by six soldiers — all furnished by Wilkin- 
son. After Burr's departure Wilkinson wrote to 
Adair, with whom he had served in the Indian 
wars, that "we must have a peep at the unknown 
world beyond me." 

On June 25, 1805, Burr landed at New Orleans, 
then the largest city west of the Alleghanies. There 
the ovation to the "hero" surpassed even the dem- 
onstration at Nashville. Again came dinners, balls, 
fetes, and every form of public and private favor. 
So perfervid was the welcome to him that the Sisters 
of the largest nunnery in Louisiana invited Burr to 
visit their convent, and this he did, under the con- 
duct of the bishop. 1 Wilkinson had given him a 
letter of introduction to Daniel Clark, the leading 
merchant of the city and the most influential man 
in Louisiana. The letter contained this cryptic sen- 
tence: "To him [Burr] I refer you for many things 

1 Burr to his daughter, May 23, 1805. This letter is delightful. "I 
will ask Saint A. to pray for thee too. I believe much in the efficacy 
of her prayers." (Davis, n, 372.) 



THE BURR CONSPIRACY 295 

improper to letter, and which he will not say to any 
other." l 

The notables of the city were eager to befriend 
Burr and to enter into his plans. Among them were 
John Watkins, Mayor of New Orleans, and James 
Workman, Judge of the Court of Orleans County. 
These men were also the leading members of the 
Mexican Association, a body of three hundred 
Americans devoted to effecting the "liberation" of 
Mexico — a design in which they accurately ex- 
pressed the general sentiment of Louisiana. The 
invasion of Mexico had become Burr's overmaster- 
ing purpose, and it gathered strength the farther he 
journeyed among the people of the West and South. 
To effect it, definite plans were now made. 2 

The Catholic authorities of New Orleans approved 
Burr's project, and appointed three priests to act as 
agents for the revolutionists m Mexico. 3 Burr's 
vision of Spanish conquest seemed likely of realiza- 
tion. The invasion of Mexico was in every heart, 
on every tongue. All that was yet lacking to make 
it certain was war between Spain and the United 
States, and every Western or Southern man be- 
lieved that war was at hand. 

Late in July, Burr, with justifiably high hope, left 
New Orleans by the overland route for Nashville, 
riding on horses supplied by Daniel Clark. Every- 
where he found the pioneers eager for hostilities. At 
Natchez the people were demonstrative. By Au- 
gust 6, Burr was again with Andrew Jackson, having 

1 McCaleb, 27; Parton: Burr, 393. 2 McCaleb, 29. 

3 Davies, Parton, and McCaleb state that, the Catholic Bishop 
appointed three Jesuits, but there was no bishop in New Orleans at 
that time and the Jesuits had been suppressed. 



296 JOHN MARSHALL 

ridden over Indian trails four hundred and fifty 
miles through the swampy wilderness. 1 

The citizens of Nashville surpassed even their 
first welcome. At the largest public dinner ever 
given in the West up to that time, Burr entered the 
hall on Jackson's arm and was received with cheers. 
Men and women vied with one another in doing him 
honor. The news Burr brought from New Orleans of 
the headway that was being made regarding the pro- 
jected descent upon the Spanish possessions, thrilled 
Jackson; and his devotion to the man whom all 
Westerners and Southerners had now come to look 
upon as their leader knew no bounds. 2 For days 
Jackson and Burr talked of the war with Spain which 
the bellicose Tennessee militia general passionately 
desired, and of the invasion of Mexico which Burr 
would lead when hostilities began. 3 At Lexington, 
at Frankfort, everywhere, Burr was received in simi- 
lar fashion. While in Kentucky he met Henry Clay, 
who at once yielded to his fascination. 

But soon strange, dark rumors, starting from 
Natchez, were sent flying over the route Burr had 
just traveled with such acclaim. They were set on 
foot by an American, one Stephen Minor, who was a 
paid spy of Spain. 4 Burr, it was said, was about to 
raise the standard of revolution in the Western and 
Southern States. Daniel Clark wished to advise 
Burr of these reports and of the origin of them, but 

1 Burr to his daughter, May 23, 1805, Davis, ii, 372. 

2 "No one equalled Andrew Jackson in warmth of devotion to 
Colonel Burr." (Adams: U.S. in, 221.) 

3 Parton: Jackson, i, 311-12; and McCaleb, 81. 

4 McCaleb, 32-33. Minor was probably directed to do this by 
Casa Yrujo himself. (See Cox: West Florida Controversy, 189.) 



THE BURR CONSPIRACY 297 

did not know where to reach him. So he hastened 
to write Wilkinson that Burr might be informed 
of the Spanish canard: "Kentucky, Tennessee, the 
State of Ohio, . . with part of Georgia and Carolina, 
are to be bribed with the plunder of the Spanish 
countries west of us, to separate from the Union." 
And Clark added: "Amuse Mr. Burr with an ac- 
count of it." * 

Wilkinson himself had long contemplated the idea 
of dismembering the Nation; he had even sounded 
some of his officers upon that subject. 2 As we have 
seen, he had been the leader of the secession move- 
ment in Kentucky in 1796. But if Burr ever really 
considered, as a practical matter, the separation of 
the Western country from the Union, his intimate con- 
tact with the people of that region had driven such a 
scheme from his mind and had renewed and strength- 
ened his long-cherished wish to invade Mexico. For 
throughout his travels he had heard loud demands 
for the expulsion of Spanish rule from America; but 
never, except perhaps at New Orleans, a hint of seces- 
sion. And if, during his journey, Burr so much as 
intimated to anybody the dismemberment of the Re- 
public, no evidence of it ever has been produced. 3 

Ignorant of the sinister reports now on their way 
behind him, Burr reached the little frontier town of 
St. Louis early in September and again conferred 
with Wilkinson, assuring him that the whole South 

1 Clark to Wilkinson, Sept. 7, 1805, Wilkinson: Memoirs of My 
Own Times, n, Appendix xxxiii. 

2 Testimony of Major James Bruff, Annals, 10th Cong. 1st Sess. 
589-609, 616-22. 

3 Except, of course, Wilkinson's story that Burr urged Western 
revolution, during the conference of these two men at St. Louis. 



298 JOHN MARSHALL 

and West were impatient to attack the Spaniards, 
and that in a short time an army could be raised to 
invade Mexico. 1 According to the story which the 
General told nearly two years afterward, Burr in- 
formed him that the South and West were ripe for 
secession, and that Wilkinson responded that Burr 
was sadly mistaken because "the Western people . . 
are bigoted to Jefferson and democracy." 2 

Whatever the truth of this may be, it is certain 
that the rumors put forth by his fellow Spanish 
agent had shaken Wilkinson's nerve for proceeding 
further with the enterprise which he himself had 
suggested to Burr. Also, as we shall see, the avari- 
cious General had begun to doubt the financial wis- 
dom of giving up his profitable connection with the 
Spanish Government. At all events, he there and 
then began to lay plans to desert his associate. Ac- 
cordingly, he gave Burr a letter of introduction to 
William Henry Harrison, Governor of Indiana Terri- 
tory, in which he urged Harrison to have Burr sent 
to Congress from Indiana, since upon this " perhaps 
. . the Union may much depend." 3 

Mythical accounts of Burr's doings and intentions 
had now sprung up in the East. The universally 
known wish of New England Federalist leaders for a 
division of the country, the common talk east of the 
Alleghanies that this was inevitable, the vivid mem- 
ory of a like sentiment formerly prevailing in Ken- 
tucky, and the belief in the seaboard States that it 
still continued — all rendered probable, to those liv- 

1 McCaleb, 34. 

2 Wilkinson's testimony. Annals, 10th Cong. 1st Sess. 611. 
8 McCaleb, 35; Parton": Burr, 401. 



THE BURR CONSPIRACY 299 

ing in that section, the schemes now attributed to 
Burr. 

Of these tales the Eastern newspapers made sen- 
sations. A separate government, they said, was to 
be set up by Burr in the Western States; the public 
lands were to be taken over and divided among 
Burr's followers; bounties, in the form of broad acres, 
were to be offered as inducements for young men to 
leave the Atlantic section of the country for the land 
of promise toward the sunset; Burr's new govern- 
ment was to repudiate its share of the public debt; 
with the aid of British ships and gold Burr was 
to conquer Mexico and establish a vast empire by 
uniting that imperial domain to the revolutionized 
Western and Southern States. 1 The Western press 
truthfully denied that any secession sentiment now 
existed among the pioneers. 

The rumors from the South and West met those 
from the North and East midway; but Burr having 
departed for Washington, they subsided for the time 
being. The brushwood, however, had been gathered 
— to burst into a raging conflagration a year later, 
when lighted by the torch of Executive authority 
in the hands of Thomas Jefferson. 

During these months the Spanish officials in 
Mexico and in the Floridas, who had long known 
of the hostility of American feeling toward them, 
learned of Burr's plan to seize the Spanish posses- 
sions, and magnified the accounts they received of 
the preparations he was making. 2 

The British Minister in Washington was also in 

1 McCaleb, 36-37. 2 Cox, 190; and McCaleb, 39. 



300 JOHN MARSHALL 

spasms of nervous anxiety. 1 When Burr reached 
the Capital he at once called on that slow-witted 
diplomat and repeated his overtures. But Pitt had 
died; the prospect of British financial assistance had 
ended; 2 and Burr sent Dayton to the Spanish Min- 
ister with a weird tale 3 in order to induce that dip- 
lomat to furnish money. 

Almost at the same time the South American 
adventurer, Miranda, again arrived in America, his 
zeal more fiery than ever, for the "liberation" of 
Venezuela. He was welcomed by the Administra- 
tion, and Secretary of State Madison gave him a 
dinner. Jefferson himself invited the revolutionist 
to dine at the Executive Mansion. Burr's hopes 
were strengthened, since he intended doing in 
Mexico precisely what Miranda was setting out to 
do in Venezuela. 

1 McCaleb, 38. 

2 Pitt died January 6, 1806. The news reached America late in the 
winter and Wilkinson learned of it some time in the spring. This fed 
his alarm, first awakened by the rumors set afloat by Spanish agents 
of which Clark had advised him. According to Davis and Parton, 
Wilkinson's resolve to sacrifice Burr was now taken. (See Davis, n, 
381-82; also Parton: Burr, 412.) 

3 This was that Burr with his desperadoes would seize the President 
and other officers of the National Government, together with the pub- 
lic money, arsenals, and ships. If, thereafter, he could not reconcile 
the States to the new arrangement, the bandit chief and his followers 
would sail for New Orleans and proclaim the independence of Louis- 
iana. 

Professor McCaleb says that this tale was a ruse to throw Casa Yrujo 
off his guard as to the now widespread reports in Florida and Texas, as 
well as America, of Burr's intended descent upon Mexico. (See Mc- 
Caleb, 54-58.) It should be repeated that the proposals of Burr and 
Dayton to Merry and Casa Yrujo were not publicly known for many 
years afterward. 

Wilkinson had coached Dayton and Burr in the art of getting money 
by falsehood and intrigue. (lb. 54.) 



THE BURR CONSPIRACY 301 

In February, 1806, Miranda sailed from New 
York upon his Venezuelan undertaking. His openly 
avowed purpose of forcibly expelling the Spanish 
Government from that country had been explained 
to Jefferson and Madison by the revolutionist per- 
sonally. Before his departure, the Spanish filibuster 
wrote to Madison, cautioning him to keep "in the 
deepest secret " the "important matters" which he 
(Miranda) had laid before him. 1 The object of his 
expedition was a matter of public notoriety. In New 
York, in the full light of day, he had bought arms and 
provisions and had enlisted men for his enterprise. 

Excepting for Burr's failure to secure funds from 
the British Government, events seemed propitious 
for the execution of his grand design. He had written 
to Blennerhassett a polite and suggestive letter, not 
inviting him, however, to engage in the adventure; 2 
the eager Irishman promptly responded, begging to 
be admitted as a partner in Burr's enterprises, and 
pledging the services of himself and his friends. 3 
Burr, to his surprise, was cordially received by Jeffer- 
son at the White House where he had a private con- 
ference of two hours with the President. 

The West openly demanded war with Spain; the 
whole country was aroused; in the House, Randolph 
offered a resolution to declare hostilities ; everywhere 
the President was denounced for weakness and de- 
lay. 4 If only Jefferson would act — if only the people's 
earnest desire for war with Spain were granted — 

1 Adams: U.S. m, 189-91. 2 Blennerhassett Papers: Safford, 115. 

3 Blennerhassett to Burr, Dec. 21, 1805, ib. 118; and see Davis, il, 
392. 

4 McCaleb, 50-53. 



302 JOHN MARSHALL 

Burr could go forward. But the President would 
make no hostile move — instead, he proposed to buy 
the Floridas. Burr, lacking funds, thought for a mo- 
ment of abandoning his plans against Mexico, and 
actually asked Jefferson for a diplomatic appoint- 
ment, which was, of course, refused. 1 

The rumor had reached Spain that the Americans 
had actually begun war. On the other hand, the 
report now came to Washington that the Spaniards 
had invaded American soil. The Secretary of War 
ordered General Wilkinson to drive the Spaniards 
back. The demand for war throughout the country 
grew louder. If ever Burr's plan of Mexican con- 
quest was to be carried out, the moment had come 
to strike the blow. His confederate, Wilkinson, in 
command of the American Army and in direct con- 
tact with the Spaniards, had only to act. 

The swirl of intrigue continued. Burr tried to get 
the support of men disaffected toward the Admin- 
istration. Among them were Commodore Truxtun, 
Commodore Stephen Decatur, and "General" 2 
William Eaton. Truxtun and Decatur were writhing 
under that shameful treatment by which each of 
these heroes had been separated, in effect removed, 
from the Navy. Eaton was cursing the Adminis- 
tration for deserting him in his African exploits, and 
even more for refusing to pay several thousand 
dollars which he claimed to have expended in his 
Barbary transactions. 3 

1 Plumer, 348; Parton: Burr, 403-04. 

2 Eaton assumed this title during his African career. He had no 
legal right to it. 

3 Eaton had done good work as American Consul to Algiers, a post 



THE BURR CONSPIRACY 303 

Truxtun and Burr were intimate friends, and the 
Commodore was fully told of the design to invade 
Mexico in the event of war with Spain; should that 
not come to pass, Burr advised Truxtun that he 
meant to settle lands he had arranged to purchase 
beyond the Mississippi. He tried to induce Truxtun 
to join him, suggesting that he would be put in 
command of a naval force to capture Havana, Vera 
Cruz, and Cartagena. When Burr "positively" in- 
formed him that the President was not a party to 
his enterprise, Truxtun declined to associate himself 
with it. Not an intimation did Burr give Truxtun of 
any purpose hostile to the United States. The two 
agreed in their contemptuous opinion of Jefferson 
and his Administration. 1 To Commodore Decatur, 
Burr talked in similar fashion, using substantially 
the same language. 

But to "General" Eaton, whom he had never be- 
to which he was appointed by President Adams. In 1804, Jefferson 
appointed him United States Naval Agent to the Barbary States. 
With the approval of the Administration, Eaton undertook to over- 
throw the reigning Pasha of Tripoli and restore to the throne the 
Pasha's brother, whom the former had deposed. In executing this 
project Eaton showed a resourcefulness, persistence, and courage as 
striking as the means he adopted were bizarre and the adventure it- 
self fantastic. (Allen : Our Navy and the Barbary Corsairs, 227 et seq.) 

Eaton charged that the enterprise failed because the American fleet 
did not properly cooperate with him, and because Tobias Lear, 
American Consul-General to Algiers, compromised the dispute with 
the reigning Bey whom Eaton's nondescript "army" was then heroi- 
cally fighting. (Eaton to the Secretary of the Navy, Aug. 9, 1805, 
Eaton: Prentiss, 376.) 

Full of wrath he returned to the United States, openly denouncing 
all whom he considered in any way responsible for the African debacle, 
and demanding payment of large sums which he alleged had been paid 
by him in advancing American interests in Africa. (lb. 393, 406; also 
see Allen, 265.) 

1 See Truxtun's testimony, infra, 459-60. 



304 JOHN MARSHALL 

fore met, Burr unfolded plans more far-reaching and 
bloody, according to the Barbary hero's account of 
the revelations. 1 At first Burr had made to Eaton 
the same statements he had detailed to Truxtun 
and Decatur, with the notable difference that he 
had assured Eaton that the proposed expedition was 
44 under the authority of the general government." 
Notwithstanding his familiarity with intrigue, the 
suddenly guileless Eaton agreed to lead a division 
of the invading army under Wilkinson who, Burr 
assured him, would be "Chief in Command." 

But after a while Eaton's sleeping perception was 
aroused. Becoming as sly as a detective, he resolved 
to "draw Burr out," and "listened with seeming 
acquiescence" while the villain "unveiled himself" 
by confidences which grew ever wilder and more irra- 
tional: Burr would establish an empire in Mexico 
and divide the Union; he even "meditated over- 
throwing the present Government" — if he could se- 
cure Truxtun, Decatur, and others, he "would turn 
Congress neck and heels out of doors, assassinate the 
President, seize the treasury and Navy ; and declare 
himself the protector of an energetic government" 

Eaton at last was "shocked" and "dropped the 
mask," declaring that the one word, " Usurper, 
would destroy" Burr. Thereupon Eaton went to 
Jefferson and urged the President to appoint Burr 
American Minister to some European government 
and thus get him out of the country, declaring that 
" if Burr were not in some way disposed of we should 

1 The talks between Burr and Eaton took place at the house of Ser- 
geant-at-Arms Wheaton, where Burr boarded. {Annals, 10th Cong. 
1st Sess. 510.) 



THE BURR CONSPIRACY 305 

within eighteen months have an insurrection if not a 
revolution on the waters of the Mississippi." The 
President was not perturbed — he had too much 
confidence in the Western people, he said, "to admit 
an apprehension of that kind." But of the horrid 
details of the murderous and treasonable villain's 
plans, never a word said Eaton to Jefferson. 1 

However, the African hero did "detail the whole 
projects of Mr. Burr" to certain members of Con- 
gress. 2 "They believed Col. Burr capable of any- 
thing — and agreed that the fellow ought to be 
hanged"; but they refused to be alarmed — Burr's 
schemes were "too chimerical and his circumstances 
too desperate to . . merit of serious consideration." 3 
So for twelve long months Eaton said nothing more 
about Burr's proposed deviltry. During this time 
he continued alternately to belabor Congress and the 
Administration for the payment of the expenses of 
his Barbary exploits. 4 

Andrew Jackson, while entertaining Burr on his 

1 See Eaton's deposition, Eaton: Prentiss, 396-403; 4 Crancb, 462- 
67. (Italics are Eaton's.) 

2 Samuel Dana and John Cotton Smith. (See Eaton's testimony, 
Annals, 10th Cong. 1st Sess. 512; and Eaton: Prentiss, 396-403.) 

That part of Eaton's account of Burr's conversation which differs 
from those with Truxtun and Decatur is simply unaccountable. That 
Burr was capable of anything may be granted; but his mind was 
highly practical and he was uncommonly reserved in speech. Un- 
doubtedly Eaton had heard the common talk about the timidity and 
supineness of the Government under Jefferson and had himself used 
language such as he ascribed to Burr. 

Whichever way one turns, no path out of the confusion appears. 
But for Burr's abstemious habits (he was the most temperate of all 
the leading men of that period) an explanation might be that he and 
Eaton were very drunk — Burr recklessly so — if he indulged in this 
uncharacteristic outburst of loquacity. 

3 Eaton: Prentiss, 402. 4 McCaleb, 62. 



306 JOHN MARSHALL 

first Western journey, had become the most promis- 
ing, in practical support, of all who avowed them- 
selves ready to follow Burr's invading standard into 
Mexico; and with Jackson he had freely consulted 
about that adventure. From Washington, Burr 
now wrote the Tennessee leader of the beclouding 
of their mutually cherished prospects of war with 
Spain. 

But hope of war was not dead, wrote Burr — 
indeed, Miranda's armed expedition "composed of 
American citizens, and openly fitted out in an Amer- 
ican port," made it probable. Jackson ought to be 
attending to something more than his militia offices, 
Burr admonished him: "Your country is full of fine 
materials for an army, and I have often said a bri- 
gade could be raised in West Tennessee which would 
drive double their number of Frenchmen off the 
earth." From such men let Jackson make out and 
send to Burr "a list of officers from colonel down to 
ensign for one or two regiments, composed of fellows 
fit for business, and with whom you would trust your 
life and your honor." Burr himself would, "in case 
troops should be called for, recommend it to the 
Department of War " ; he had " reason to believe that 
on such an occasion" that department would listen 
to his advice. 1 

1 Burr to Jackson, March 24, 1806, Parton: Jackson, I, 313-14. 

Burr also told Jackson of John Randolph's denunciation of Jeffer- 
son's "duplicity and imbecility," and of small politics receiving "more 
of public attention than all our collisions with foreign powers, or than 
all the great events on the theatre of Europe." He closed with the 
statement, then so common, that such "things begin to make reflect- 
ing men think, many good patriots to doubt, and some to despond." 
(See McCaleb, 51.) 



THE BURR CONSPIRACY 30? 

At last Burr, oblivious to the danger that Eaton 
might disclose the deadly secrets which he had so 
imprudently confided to a dissipated stranger, re- 
solved to act and set out on his fateful journey. Be- 
fore doing so, he sent two copies of a cipher letter to 
Wilkinson. This was in answer to a letter which Burr 
had just received from Wilkinson, dated May 13, 
1806, the contents of which never have been revealed. 
Burr chose, as the messenger to carry overland one of 
the copies, Samuel Swartwout, a youth then twenty- 
two years of age, and brother of Colonel John Swart- 
wout whom Jefferson had removed from the office 
of United States Marshal for the District of New 
York largely because of the Colonel's lifelong friend- 
ship for Burr. The other copy was sent by sea to 
New Orleans by Dr. Justus Erich Bollmann. 1 

No thought had Burr that Wilkinson, his ancient 
army friend and the arch conspirator of the whole 
plot, would reveal his dispatch. He and Wilkinson 
were united too deeply in the adventure for that to 
be thinkable. Moreover, the imminence of war ap- 
peared to make it certain that when the General 
received Burr's cipher, the two men would be com- 
rades in arms against Spain in a war which, it cannot 

1 This man, then thirty-five years of age, and "engaging in . . ap- 
pearance" (Blennerhassett Payers: Safford, 434), had had a pictur- 
esque career. A graduate of Gottingen, he lived in Paris during the 
Revolution, went to London for a time, and from there to Vienna, 
where he practiced medicine as a cover for his real design, which was 
to discover the prison where Lafayette was confined and to rescue him 
from it. This he succeeded in doing, but both were taken soon after- 
ward. Bollmann was imprisoned for many months, and then released 
on condition that he leave Austria forever. He came to the United 
States and entered into Burr's enterprise with unbounded enthusiasm. 
His name often appears as "Erick Bolman" in American records. 



308 JOHN MARSHALL 

be too often repeated, it was believed Wilkinson 
could bring on at any moment. 

Nevertheless, Burr and Dayton had misgivings 
that the timorous General might not attack the 
Spaniards. They bolstered him up by hopeful let- 
ters, appealing to his cupidity, his ambition, his van- 
ity, his fear. Dayton wrote that Jefferson was about 
to displace him and appoint another head of the 
army; let Wilkinson, therefore, precipitate hostili' 
ties — "You know the rest. . . Are you ready? Are 
your numerous associates ready? Wealth and glory! 
Louisiana and Mexico!" * 

In his cipher dispatch to Wilkinson, Burr went to 
even greater lengths and with reason, for the impa- 
tient General had written him another letter, urg- 
ing him to hurry: "I fancy Miranda has taken the 
bread out of your mouth; and I shall be ready for 
the grand expedition before you are." 2 Burr then 
assured Wilkinson that he was not only ready but on 
his way, and tried to strengthen the resolution of the 
shifty General by falsehood. He told of tremendous 
aid secured in far-off Washington and New York, 
and intimated that England would help. He was 
coming himself with money and men, and details 
were given. Bombastic sentences — entirely unlike 
any language appearing in Burr's voluminous corre- 
spondence and papers — were well chosen for their 
effect on Wilkinson's vainglorious mind: "The gods 
invite us to glory and fortune; it remains to be seen 
whether we deserve the boon. . . Burr guarantees 

1 Dayton to Wilkinson, July 24, 1806, Annals, 10th Cong. 1st sess. 
560. 

2 See testimony of Littleton W. Tazewell, John Brokenbrough, and 
, Joseph C. Cabell. (Annals, 10th Cong. 1st Sess. 630, 675, 676). 



THE BURR CONSPIRACY 309 

the result with his life and honor, with the lives and 
honor and the fortunes of hundreds, the best blood 
of our country." 1 

Fatal error! The sending of that dispatch was to 
give Wilkinson his opportunity to save himself by 
assuming the disguise of patriotism and of fealty 
to Jefferson, and, clad in these habiliments, to de- 
nounce his associates in the Mexican adventure as 
traitors to America. Soon, very soon, Wilkinson was 
to use Burr's letter in a fashion to bring his friend 
and many honest men to the very edge of execution 
— a fate from which only the fearlessness and pene- 
trating mind of John Marshall was to save them. 

But this black future Burr could not foresee. Cer- 
tain, as were most men, that war with Spain could 
not be delayed much longer, and knowing that Wil- 
kinson could precipitate it at any moment, Burr's 
mind was at rest. At the beginning of August, 1806, 
he once more journeyed down the Ohio. On the way 
he stopped at a settlement on the Monongahela, not 
far from Pittsburgh, where he visited one Colonel 
George Morgan. This man afterward declared that 
Burr talked mysteriously — the Administration was 
contemptible, two hundred men could drive the 
Government into the Potomac, five hundred could 
take New York; and, Burr added laughingly, 
even the Western States could be detached from the 
Union. Most of this was said "in the presence of a 
considerable company." 2 

1 For Burr's cipher dispatch see Appendix D. 

2 Annals, 10th Cong. 1st sess. 424-28 and see McCaleb, 77. 
Professor McCaleb evidently doubts the disinterestedness of Mor- 
gan and his sons. He shows that they had been in questionable land 



310 JOHN MARSHALL 

The elder Morgan, who was aged and garrulous, 1 
pieced together his inferences from Burr's mean- 
ing looks, jocular innuendoes, and mysterious state- 
ments, 2 and detected a purpose to divide the Nation. 
Deeply moved, he laid his deductions before the 
Chief Justice of Pennsylvania and two other gentle- 
men from Pittsburgh, a town close at hand; and a 
letter was written to Jefferson, advising him of the 
threatened danger. 3 

From Pittsburgh, Burr for the second time landed 
on the island of Harman Blennerhassett, who was 
eager for any adventure that would restore his de- 
clining fortunes. If war with Spain should, after all, 
not come to pass, Burr's other plan was the purchase 
of the enormous Bastrop land grant on the Washita 
River. Blennerhassett avidly seized upon both 
projects. 4 From that moment forward, the settle- 
ment of this rich and extensive domain in the then 
untouched and almost unexplored West became 
the alternative purpose of Aaron Burr in case the 

transactions and, at this moment, were asking Congress to grant them 
a doubtful land claim. (See McCaleb, footnote to 77.) 

1 Testimony of Morgan's son, Annals, 10th Cong. 1st Sess. 424. 

2 "Colonel Burr, on this occasion as on others, comported himself 
precisely as a man having 'treasonable' designs would not comport 
himself, unless he were mad or intoxicated." (Parton: Burr, 415.) 
Professor McCaleb's analysis of the Morgan incident is thorough and 
convincing. (See McCaleb, 76-78.) 

3 Nevill and Roberts to Jefferson, Oct. 7, 1806, "Letters in Rela- 
tion to Burr Conspiracy," MSS. Lib. Cong. This important letter set 
out that " to give a correct written statement of those [Burr's] con- 
versations [with the Morgans] . . would be difficult . . and indeed, 
according to our informant, much more was to be collected, from the 
manner in which certain things were said, and hints given than from 
words used." 

4 McCaleb, 78-79; Parton: Burr, 411. 



THE BURR CONSPIRACY 311 

desire of his heart, the seizure of Mexico, should 
fail. 1 

Unfortunately Blennerhassett who, as his friends 
declared, "had all kinds of sense, except common 
sense," 2 now wrote a series of letters for an Ohio 
country newspaper in answer to the articles appear- 
ing in the Kentucky organ of Daveiss and Humphrey 
Marshall, the Western World. The Irish enthusiast 
tried to show that a separation of the Western States 
from "Eastern domination" would be a good thing. 
These foolish communications were merely repeti- 
tions of similar articles then appearing in the Feder- 
alist press of New England, and of effusions printed 
in Southern newspapers a few years before. No- 
body, it seems, paid much attention to these vaga- 
ries of Blennerhassett. It is possible that Burr knew 
of them, but proof of this was never adduced- When 
the explosion came, however, Blennerhassett's maun- 
derings were recalled, and they became another one 
of those evidences of Burr's guilt which, to the 
public mind, was " confirmation strong as holy writ." 

Burr and his newly made partner contracted for 
the building of fifteen boats, to be delivered in four 
months; and pork, meal, and other provisions were 
purchased. The island became the center of oper- 
ations. Soon a few young men from Pittsburgh 
joined the enterprise, some of them sons of Revolu- 
tionary officers, and all of them of undoubted loyalty 

1 McCaleb, 83-84; Parton: Burr, 412-13. 

At this time Burr also wrote to William Wilkins and B. H. Latrobe 
calling their attention to his Bastrop speculation. (Miscellaneous 
MSS. N.Y. Pub. Lib.) 

2 See testimony of Dudley Woodbridge. infra, 489. 



312 JOHN MARSHALL 

to the Nation. To each of these one hundred acres 
of land on the Washita were promised, as part of 
their compensation for participating in the expedi- 
tion, the entire purpose of which was not then ex- 
plained to them. 1 

Burr again visited Marietta, where the local 
militia were assembled for their annual drill, and 
put these rural soldiers through their evolutions, 
again fascinating the whole community. 2 At Cin- 
cinnati, Burr held another long conference with his 
partner, Senator John Smith, who was a contrac- 
tor and general storekeeper. The place which the 
Washita land speculation had already come to hold 
in his mind is shown by the conversation — Burr 
talked as much of that project as he did of war with 
Spain and his great ambition to invade Mexico; 3 
but of secession, not a syllable. 

Next Burr hurried to Nashville and once more 
became the honored guest of Andrew Jackson, whom 
he frankly told of the modification of his plans. His 
immediate purpose, Burr said, now was to settle the 
Washita lands. Of course, if war should break out 
he would lead a force into Texas and Mexico. Burr 
kept back only the part Wilkinson was to play in 
precipitating hostilities; and he said nothing of his 
efforts to bolster up that frail warrior's resolution. 4 

In Tennessee and Kentucky the talk was again of 
war with Spain. Indeed, it was now the only talk. 5 

1 McCaleb, 80. 2 Parton: Burr, 415-16. 3 McCaleb, 81. 

4 lb.; and see Parton: Jackson, I, 318. 

6 "There were not a thousand persons in the United States who did 
not think war with Spain inevitable, impending, begun!" (Parton: 
Burr, 407; McCaleb, 110.) 



THE BURR CONSPIRACY 313 

For the third time in the Tennessee Capital a public 
banquet was given to the hero by whom the people 
expected to be led against the enemy. Soon after- 
ward Jackson issued his proclamation to the Ten- 
nessee militia calling them to arms against the hated 
Spaniards, and volunteered his services to the Na- 
tional Government. Jefferson answered in a letter 
provoking in its vagueness. 1 

At Lexington, Kentucky, Burr and Blennerhas- 
sett now purchased from Colonel Charles Lynch, 
the owner of the Bastrop grant, several hundred 
thousand acres on the Washita River in Northern 
Louisiana. 2 

To many to whom Burr had spoken of his scheme 
to invade Mexico he gave the impression that his 
designs had the approval of the Administration; to 
some he actually stated this to be the fact. In case 
war was declared, the Administration, of course, 
would necessarily support Burr's attack upon the 
enemy; if hostilities did not occur, the "Govern- 
ment might overlook the preparations as in the case 
of Miranda." 3 It is hard to determine whether the 
project to invade Mexico — of which Burr did not 
inform them, but which they knew to be his pur- 
pose — or the plan to settle the Washita lands, was 
the more attractive to the young men who wished 
to join him. Certainly, the Bastrop grant was so 

1 See Jefferson to Jackson, Dec. 3, 1806, as quoted in McCaleb, 82. 

2 See testimony of Colonel Charles Lynch, Annals, 10th Cong. 
1st Sess. 656-58; and that of Thomas Bodley, Clerk of the Circuit 
Court, ib. 655-56. The statements of these men are also very impor- 
tant as showing Burr's plans and preparations at this time. 

8 McCaleb, 84-85. 



314 JOHN MARSHALL 

placed as to afford every possible lure to the youth- 
ful, enterprising, and adventurous. 1 

At this moment Wilkinson, apparently recovered 
from the panic into which Clark's letter had thrown 
him a year before, seemed resolved at last to strike. 
He even wrote with enthusiasm to General John 
Adair: "The time long looked for by many & 
wished for by more has now arrived, for subverting 
the Spanish government in Mexico — be ready & 
join me; we will want little more than light armed 
troops. . . More will be done by marching than by 
fighting. . . We cannot fail of success. 2 Your mili- 
tary talents are requisite. Unless you fear to join a 
Spanish intriguer [Wilkinson] come immediately — 
without your aid I can do nothing." 3 In reply Adair 
wrote Wilkinson that "the United States had not de- 
clared war against Spain and he did not believe they 
would." If not, Adair would not violate the law by 
joining Wilkinson's projected attack on Spain. 4 

By the same post Wilkinson wrote to Senator John 
Smith a letter bristling with italics : " I shall assuredly 
push them [the Spaniards] over the Sabine . . as that 
you are alive. . . You must speedily send me a force to 

1 The Bastrop grant was accessible to the markets of New Orleans; 
it was surrounded by Indian tribes whose ^rade was valuable; its 
forests were wholly unexplored; it was on the Spanish border, and 
therefore an admirable point for foray or retreat. (See McCaleb, 83; 
and Cox in Southwestern Hist. Quarterly, xvn, 150.) 

2 Wilkinson to Adair, Sept. 28, 1806, as quoted in open letter of 
Adair to the Orleans Gazette, May 16, 1807, "Letters in Relation," 
MSS. Lib. Cong. 

3 Wilkinson to Adair, Sept. 28, 1806, as quoted by Plumer, Feb. 
20, 1807, "Register," Plumer MSS. Lib. Cong. 

4 Adair to Wilkinson, Oct. or Nov. 1806, as quoted by Plumer. 
Feb. 20, 1807, "Register," Plumer MSS. Lib. Cong. 



THE BURR CONSPIRACY 315 

support our pretensions . . 5000 mounted infantry . . 
may suffice to carry us forward as far as Grand River 
[the Rio Grande], there we shall require 5000 more to 
conduct us to Mount el Rey . . after which from 20 to 
30,000 will be necessary to carry our conquests to Cali- 
fornia and the Isthmus of Darien. I write in haste, 
freely and confidentially, being ever your friend." * 

In Kentucky once more the rumors sprang up 
that Burr meant to dismember the Union, and these 
were now put forward as definite charges. For 
months Joseph Hamilton Daveiss, a brother-in-law 
of John Marshall — appointed at the latter's in- 
stance by President Adams as United States At- 
torney for the District of Kentucky 2 — had been 
writing Jefferson exciting letters about some kind of 
conspiracy in which he was sure Burr was engaged. 
The President considered lightly these tales written 
him by one of his bitterest enemies. 

With the idea of embarrassing the Republican 
President, by connecting him, through the Admin- 
istration's seeming acquiescence in Burr's projects 
as in the case of the Miranda expedition, Daveiss 
and his relative, former Senator Humphrey Mar- 
shall — both leaders of the few Federalists now re- 
maining in Kentucky — welded together the rumors 
of Burr's Mexican designs and those of his treason- 
able plot to separate the Western States from the 
Union. These they published in a newspaper which 
they controlled at Frankfort. 3 

1 Wilkinson to Smith, Sept. 28, 1806, "Letters in Relation," MSS. 
Lib. Cong. 

2 See vol. II, 560, of this work. 

3 The Western World, edited by the notorious John Wood, author of 



316 JOHN MARSHALL 

The moss was removed from the ancient Spanish 
intrigues; Wilkinson was truthfully denounced as a 
pensioner of Spain ; but the plot, it was charged, had 
veered from a union of the West with the Spanish 
dominions, to the establishment, by force of arms, 
of an independent trans -Alleghany Government. 1 
The Federalist organs in the East adopted the stories 
related in the Western World, and laid especial em- 
phasis on the disloyalty of the Western States, 
particularly of Kentucky. 

The rumors had so aroused the people living near 
Blennerhassett's island that Mrs. Blennerhassett 
sent a messenger to warn Burr that he could not, in 
safety, appear there again. Learning this from the 
bearer of these tidings, Burr's partner, Senator John 
Smith, demanded of his associate an explanation. 
Burr promptly answered that he was "greatly sur- 
prised and really hurt" by Smith's letter. "If," said 
Burr, "there exists any design to separate the West- 
ern from the Eastern States, I am totally ignorant of 
it. I never harbored or expressed any such intention 
to any one, nor did any person ever intimate such 
design to me." 2 

the History of the Administration of John Adams, which was suppressed 
by Burr. (See vol. n, 380, of this work.) Wood was of the same type 
of irresponsible pamphleteer and newspaper hack as Callender and 
Cheetham. His so-called "history" was a dull, untruthful, scandalous 
diatribe; and it is to Burr's credit that he bought the plates and sup- 
pressed the book. Yet this action was one of the reasons given for the 
remorseless pursuit of him, after it had been determined to destroy 
him. 

1 McCaleb, 172-75. 

2 Adams: U.S. in, 276. This was a falsehood, since Burr had pro- 
posed Western secession to the British Minister. But he knew that 
no one else could have knowledge of his plot with Merry. It is both 



THE BURR CONSPIRACY 317 

Daveiss and Humphrey Marshall now resolved to 
stay the progress of the plot at which they were 
convinced that the Republican Administration was 
winking. If Jefferson was complacent, Daveiss would 
act and act officially; thus the President, by contrast, 
would be fatally embarrassed. Another motive, per- 
sonal in its nature, inspired Daveiss. He was an 
able, fearless, passionate man, and he hated Burr 
violently for having killed Hamilton whom Daveiss 
had all but worshiped. 1 

Early in November the District Attorney moved 
the United States Court at Frankfort to issue com- 
pulsory process for Burr's apprehension and for 
the attendance of witnesses. Burr heard of this at 
Lexington and sent word that he would appear vol- 
untarily. This he did, and, the court having denied 
Daveiss's motion because of the irregularity of it, 
the accused demanded that a public and official 
investigation be made of his plans and activities. 
Accordingly, the grand jury was summoned aud 
Daveiss given time to secure witnesses. 

On the day appointed Burr was in court. By his 
side was his attorney, a tall, slender, sandy-haired 

interesting and important that to the end of his life Burr steadily 
maintained that he never harbored a thought of dismembering the 
Nation. 

1 (Clay to Pindell, Oct. 15, 1828, Works of Henry Clay: Colton, iv, 
206; also Private Correspondence of Henry Clay: Colton, 206-08.) 

So strong was his devotion to Hamilton, that "after he had at- 
tained full age," Daveiss adopted the name of his hero as part of 
his own, thereafter signing himself Joseph Hamilton Daveiss and 
requiring everybody so to address him. "Chiefly moved . . by his 
admiration of Colonel Hamilton and his hatred of Colonel Burr," 
testifies Henry Clay, Daveiss took the first step in the series of pros- 
ecutions that ended in the trial of Burr for treason. (lb.) 



318 JOHN MARSHALL 

young man of twenty-nine who had just been ap- 
pointed to the National Senate. Thus Henry Clay 
entered the drama. Daveiss failed to produce a 
single witness, and Burr, "after a dignified and grave 
harangue," was discharged, to the tumultuous de- 
light of the people. 1 

Two weeks later the discomfited but persistent 
and undaunted District Attorney again demanded oi 
Judge Innes the apprehension of the "traitor." Clay 
requested of Burr a written denial of the charges so 
incessantly made against him. This Burr promptly 
furnished. 2 Clay was so convinced of Burr's integ- 
rity that he declared in court that he "could pledge 

1 Adams: U.S. in, 278. 

2 "I have no design, nor have I taken any measure to promote a 
dissolution of the Union, or a separation of any one or more States 
from the residue. I have neither published a line on this subject nor 
has any one, through my agency, or with my knowledge. I have 
no design to intermeddle with the Government or to disturb the 
tranquillity of the United States, or of its territories, or any part 
of them. 

"I have neither issued, nor signed, nor promised a commission to 
any person for any purpose. I do not own a musket nor a bayonet, 
nor any single article of military stores, nor does any person for me, 
by my authority or with my knowledge. 

" My views have been fully explained to, and approved by, several 
of the principal officers of Government, and, I believe, are well under- 
stood by the administration and seen by it with complacency. They 
are such as every man of honor and every good citizen must approve." 
(Burr to Clay, Dec. 1, 1806, Priv. Carres.-. Colton, 13-14.) 

Parton says that this was substantially true: "Jefferson and his 
cabinet undoubtedly knew . . that he was going to settle in the west- 
ern country, and that if the expected war should break out, he would 
head an onslaught upon the Dons. 

"His ulterior views may have been known to one, or even two, 
members of Jefferson's cabinet, for anything that can now be ascer- 
tained. The moment the tide really turned against this fated man, a 
surprising ignorance overspread many minds that had before been 
extremely well-informed respecting his plans." (Parton : Burr, 422-23; 
see also McCaleb, 191.) 



THE BURR CONSPIRACY 319 

his own honor and innocence" for those of his client. 
Once more no witnesses were produced; once more 
the grand jury could not return an indictment; once 
more Burr was discharged. The crowd that packed 
the court-room burst into cheers. 1 That night a ball, 
given in Burr's honor, crowned this second of his 
triumphs in the United States Court. 2 

Thereafter Burr continued his preparations as if 
nothing had happened. To all he calmly stated the 
propriety of his enterprise. To his fellow adventurer, 
Senator John Smith, he was again particularly ex- 
plicit and clear: "If there should be a war between 
the United States and Spain, I shall head a corps of 
volunteers and be the first to march into the Mexican 
provinces. If peace should be proffered, which I do 
not expect, I shall settle my Washita lands, and 
make society as pleasant as possible. . . I have been 
persecuted, shamefully persecuted." 3 As to dividing 
the Union, Burr told Smith that "if Bonaparte with 
all his army were in the western country with the 
object . . he would never see salt water again." 4 

While Burr was writing this letter, Jefferson was 
signing a document that, when sent forth, as it im- 
mediately was, ignited all the rumors, reports, accu- 
sations, and suspicions that had been accumulating. 

1 "When the grand jury returned the bill of indictment not true, 
a scene was presented in the Court-room which I had never before 
witnessed in Kentucky. There were shouts of applause from an audi- 
ence, not one of whom . . would have hesitated to level a rifle against 
Colonel Burr, if he believed that he aimed to dismember the Union, or 
sought to violate its peace, or overturn its Constitution." (Clay to 
Pindell, Oct. 15, 1828, Priv. Carres.: Colton, 207.) 

2 Adams: U.S. in, 282-83; McCaleb, 192-93; Parton: Burr, 418-22. 

3 Burr to Smith, as quoted in McCaleb, 183. * Parton : Burr, 423. 



320 JOHN MARSHALL 

and set the country on fire with wrath against the 
disturber of our national bliss. 

When Wilkinson received Burr's cipher dispatch, 
he took time to consider the best methods for saving 
himself, filling his purse, and brightening his tar- 
nished reputation. 1 The faithful and unsuspecting 
young Swartwout, Burr's messenger, was persuaded 
to remain in Wilkinson's camp for a week after the 
delivery of the fatal letter. He was treated with 
marked friendliness, and from him the General 
afterward pretended to have extracted frightful 
details of Burr's undertaking. 2 

1 The Spanish Minister accurately explained to his home Govern- 
ment the motives that now animated the commander of the American 
Army: 

"Wilkinson is entirely devoted to us. He enjoys a considerable pen- 
sion from the King. . . He anticipated . . the failure of an expedition 
of this nature [Burr's invasion of Mexico]. Doubtless he foresaw 
from the first that the improbability of success in case of making the 
attempt would leave him like the dog in the fable with the piece of 
meat in his mouth; that is, that he would lose [both] the honorable 
employment . . [as American Commander] and the generous pension 
he enjoys from the King. These considerations, secret in their nature, 
he could not explain to Burr; and when the latter persisted in an idea 
so fatal to Wilkinson's interests, nothing remained but to take the 
course adopted. 

"By this means he assures his pension; and will allege his conduct 
on this occasion as an extraordinary service, either for getting it in- 
creased, or for some generous compensation. 

"On the other hand this proceeding secures his distinguished rank 
in the military service of the United States, and covers him with a 
popularity which may perhaps result in pecuniary advantages, and in 
any case will flatter his vanity. 

"In such an alternative he has acted as was to be expected; that is, 
he has sacrificed Burr in order to obtain, on the ruins of Burr's repu- 
tation, the advantages I have pointed out." (Casa Yrujo to Cevallos, 
Jan. 28, 1807, as quoted in Adams: U.S. m, 342-43.) 

2 Swartwout, under oath, denied that he had told Wilkinson this 
story. Swartwout's affidavit is important. He swears that he never 
heard of the revolutionizing of "the N[ew] 0[rleans] Territory" until 



THE BURR CONSPIRACY 321 

Seven more days passed, and at last, two weeks 
after he had received Burr's cipher dispatch, Wil- 
kinson wrote Jefferson that "a Numerous and pow- 
erful Association, extending from New York to . . 
the Mississippi had been formed to levy & rendez- 
vous eight or Ten Thousand Men in New Orleans . . 
& from thence . . to carry an Expedition against 
Vera Cruz." Wilkinson gave details — dates and 
places of assembling troops, methods of invasion, 
etc., and added: "It is unknown under what Author- 
ity this Enterprize has been projected, from where 
the means of its support are derived, or what may 
be the intentions of its leaders in relation to the 
Territory of Orleans." 1 

Surprising as this was, the General supported it 
by a "confidential" and personal letter to Jefferson 2 
still more mysterious and disquieting: "The mag- 
Wilkinson mentioned it — "I first heard of such a project from Wil- 
kinson"; that Burr never had spoken of attacking Mexico except "in 
case of war with Spain"; that if there were no war, Burr intended to 
settle the Washita lands. (See Henshaw hi Quarterly Pub. Hist, and 
Phil. Soc. Ohio, ix, Nos. 1 and 2, 53-54.) 

This young man made a deep impression of honesty and straight- 
forwardness on all who came in contact with him. (See testimony of 
Tazewell, Cabell, and Brokenbrough, Annals, 10th Cong. 1st Sess. 
633.) " Swartwout is a fine genteel intelligible young man." (Plumer 
to Mason, Jan. 30, 1807, Plumer MSS. Lib. Cong.) 

Notwithstanding his frank and engaging manner, Swartwout was 
at heart a basely dishonest person. Thirty years later, when Collector 
of the Port of New York, he embezzled a million and a quarter 
dollars of the public funds. (Bassett: Life of Andrew Jackson, n, 
452-53.) 

1 Wilkinson's dispatch, Oct. 20, 1806, "Letters in Relation," MSS. 
Lib. Cong. Wilkinson's dispatch to Jefferson was based on the revela- 
tions which he pretended to have drawn from Swartwout. 

2 The dispatch would go on file in the War Department; the "per- 
sonal and confidential" communication to Jefferson would remain 
in the President's hands. 



322 JOHN MARSHALL 

nitude of the Enterprize, the desperation of the 
Place, and the stupendous consequences with which 
it seems pregnant, stagger my belief & excite doubts 
of the reality, against the conviction of my Senses; 
& it is for this reason I shall forbear to commit Names. 
. . I have never in my whole Life found myself in 
such circumstances of perplexity and Embarrass- 
ment as at present; for I am not only uninformed of 
the prime mover and Ultimate Objects of this dar- 
ing Enterprize, but am ignorant of the foundation 
on which it rests." 

Wilkinson went on to say that, as an inducement 
for him to take part in it, he had been told that "you 
[Jefferson] connive at the combination and that our 
country will justify it." If this were not true, "then 
I have no doubt the revolt of this Territory will be 
made an auxiliary step to the main design of attack- 
ing Mexico." So he thought he ought to compromise 
with the Spaniards and throw himself with his "little 
Band into New Orleans, to be ready to defend that 
Capitol against Usurpation and violence." 

He wrote more to the same effect, and added this 
postscript: "Should Spain be disposed to War seri- 
ously with us, might not some plan be adopted to 
correct the delirium of the associates, and by a piti- 
able appeal to their patriotism to engage them in the 
service of their Country. I merely offer the sugges- 
tion as a possible expedient to prevent the Horrors 
of a civil contest, and I do believe that, with com- 
petent authority I could accomplish the object." l 

1 Wilkinson to Jefferson, Oct. 21, 1806, "Letters in Relation," 
MSS. Lib. Cong. 



THE BURR CONSPIRACY 323 

This was the letter which a few months later 
caused Chief Justice John Marshall to issue a sub- 
pcena duces tecum directed to President Thomas 
Jefferson in order to have it produced in court. 1 

Jefferson had known of the rumors about Burr — 
George Morgan, Joseph H. Daveiss, and William 
Eaton had put him on the track of the "traitor." 
Others had told of the American Catiline's trea- 
sonable plans; and the newspapers, of which he 
was a studious reader, had advised the President 
of every sensation that had appeared. Jefferson and 
his Cabinet had nervously debated the situation, de- 
cided on plans to forestall the conspiracy, and then 
hurriedly abandoned them; 2 evidently they had no 
faith in the lurid stories of Burr's treasonable pur- 
poses and preparations. 

Letters to Jefferson from the West, arriving Oc- 
tober 24, 1806, bore out the disbelief of the Presi- 
dent and his Cabinet in Burr's lawless activities; for 
these advices from the President's friends who, on 
the ground, were closely watching Burr, contained 
"not one word . . of any movements by Colonel 
Burr. This total silence of the officers of the Govern- 
ment, of the members of Congress, of the news- 
papers, proves he is committing no overt act against 
law," Jefferson wrote in his Cabinet Memorandum. 3 
So the President and his Cabinet decided to do 
nothing further at that time than to order John 
Graham, while on his way to assume the office of 

1 See infra, chap. vin. 

2 Jefferson's Cabinet Memorandum, Oct. 22, 1806, as quoted in 
Adams: U.S. m, 278-80. 

3 lb. Oct. 25, 1806, as quoted in Adams: U.S. m, 281. 



324 JOHN MARSHALL 

Secretary of the Orleans Territory, to investigate 
Burr's activities. 

But when the mysterious warnings from Wilkinson 
reached Jefferson, he again called his Cabinet into 
consultation and precipitate action was taken. Or- 
ders were dispatched to military commanders to take 
measures against Burr's expedition; Wilkinson was 
directed to withdraw his troops confronting the 
Spaniards and dispose of them for the defense of 
New Orleans and other endangered points. 

Most important of all, a Presidential Proclama- 
tion was issued to all officials and citizens, declaring 
that a conspiracy had been discovered, warning all 
persons engaged in it to withdraw, and directing the 
ferreting out and seizure of the conspirators' "ves- 
sels, arms and military stores." x Graham preceded 
the Proclamation and induced Governor Tiffin and 
the Ohio Legislature to take action for the seizure of 
Burr's boats and supplies at Marietta; and this was 
done. 

On December 10, 1806, Comfort Tyler of Onon- 
daga County, New York, one of the minor leaders of 
the Burr expedition, 2 arrived at Blennerhassett's 
island with a few boats and some twenty young men 
who had joined the adventure. There were a half- 

1 Jefferson's Proclamation, Nov. 27, 1806, Works, Ford, x, 301-02; 
Wilkinson: Memoirs, n, Appendix xcvi. 

2 Tyler had been in the New York Legislature with Burr and there 
became strongly attached to him. (See Clark: Onondaga.) He went 
to Beaver, Pennsylvania, in the interests of Burr's enterprise, and 
from there made his way to Blennerhassett's island. Tyler always 
maintained that the sole object of the expedition was to settle the 
Washita lands. (See his pathetic letter asserting this to Lieutenant 
Horatio Stark, Jan. 23, 1807, "Letters in Relation," MSS. Lib. 
Cong.) 



THE BURR CONSPIRACY 325 

dozen rifles among them, and a few fowling pieces. 
With these the youths went hunting in the Ohio 
forests. Blennerhassett, too, had his pistols. This 
was the whole of the warlike equipment of that mili- 
tant throng — all that constituted that "overt act 
of treason by levying war against the United States " 
which soon brought Burr within the shadow of the 
gallows. 

Jefferson's Proclamation had now reached West- 
ern Virginia, and it so kindled the patriotism of the 
militia of Wood County, within the boundaries of 
which the island lay, that that heroic host resolved 
to descend in its armed might upon the embattled 
"traitors," capture and deliver them to the ven- 
geance of the law. The Wood County men, unlike 
those of Ohio, needed no act of legislature to set 
their loyalty in motion. The Presidential Proclama- 
tion, and the sight of the enemies of the Nation gath- 
ered in such threatening and formidable array on 
Blennerhassett's island, were more than enough to 
cause them to spring to arms in behalf of their im- 
periled country. 

Badly frightened, Blennerhassett and Tyler, leav- 
ing Mrs. Blennerhassett behind, fled down the river 
with thirty men in six half -equipped boats. They 
passed the sentries of the W T ood County militia only 
because those ministers of vigilance had got thor- 
oughly drunk and were sound asleep. Next day, 
however, the militia invaded the deserted island 
and, finding the generously stocked wine cellar, re- 
stored their strength by drinking all the wine and 
whiskey on the place. They then demonstrated their 



326 JOHN MARSHALL 

abhorrence of treason by breaking the windows, 
demolishing the furniture, tearing the pictures, 
trampling the flower-beds, burning the fences, and 
insulting Mrs. Blennerhassett. * 

Graham procured the authorities of Kentucky to 
take action similar to that adopted in Ohio. Burr, 
still ignorant of Jefferson's Proclamation, proceeded 
to Nashville, there to embark in the boats Jackson 
was building for him, to go on the last river voyage 
of his adventure. 

Jackson, like Smith and Clay, had been made un- 
easy by the rumors of Burr's treasonable designs. He 
had written Governor Claiborne at New Orleans a 
letter of warning, particularly against Wilkinson, and 
not mentioning Burr by name. 2 When Burr arrived 
at the Tennessee Capital, Jackson, his manner now 
cold, demanded an explanation. Burr, "with his 
usual dignified courtesy, instantly complied." 3 It 
would seem that Jackson was satisfied by his re- 
assurance, in spite of the President's Proclamation 
which reached Nashville three days before Burr's 
departure; 4 for not only did Jackson permit him 
to proceed, but, when the adventurer started down 
the Cumberland in two of the six boats which he 
had built on Burr's previous orders, consented that 
a nephew of his wife should make one of the ten 
or fifteen young men who accompanied the expedi- 

1 Hildreth, v, 619; Partem: Burr, 436-38. 

2 Jackson to Claiborne, Nov. 12, 1806, Parton: Jackson, I, 319,' 
and see McCaleb, 253. 

3 Adams: U.S. in, 287; Parton: Jackson, i, 320-21. 

4 Parton inaccurately says that the Proclamation reached Nash« 
ville after Burr's departure. (Parton: Jackson, I, 322.) 



THE BURR CONSPIRACY 327 

tion. He even gave the boy a letter of introduction 
to Governor Claiborne at New Orleans. 1 

After the people had recovered from the shock of 
astonishment that Jefferson's Proclamation gave 
them, the change in them was instantaneous and 
extreme. 2 The President, to be sure, had not men- 
tioned Burr's name or so much as hinted at treason; 
all that Jefferson charged was a conspiracy to attack 
the hated Spaniards, and this was the hope and 
desire of every Westerner. Nevertheless, the public 
intelligence penetrated what it believed to be the 
terrible meaning behind the President's cautious 
words; the atrocious purpose to dismember the 
Union, reports of which had pursued Burr since a 
Spanish agent had first set the rumor afoot a year 
before, was established in the minds of the people. 

Surely the President would not hunt down an 
American seeking to overthrow Spanish power in 
North America, when a Spanish "liberator" had 
been permitted to fit out in the United States an 
expedition to do the same thing in South America. 
Surely Jefferson would not visit his wrath on one 
whose only crime was the gathering of men to strike 
at Spain with which power, up to that very moment, 
everybody supposed war to be impending and, in- 
deed, almost begun. This was unthinkable. Burr 
must be guilty of a greater crime — the greatest of 

1 Adams: U.S. m, 288; Parton: Jackson, i, 321. 

2 For instance, at Nashville, Burr was burnt in effigy in the public 
square. (Parton: Jackson, I, 322.) At Cincinnati an amusing panic 
occurred: three merchant scows loaded with dry goods were believed 
to be a part of Burr's flotilla of war vessels about to attack the town. 
The militia was called out, citizens organized for defense, the adja- 
cent country was appealed to for aid. (See McCaleb, 248-49.) 



328 JOHN MARSHALL 

crimes. In such fashion was public opinion made 
ready to demand the execution of the "traitor" who 
had so outrageously deceived the people; and that 
popular outcry began for the blood of Aaron Burr 
by which John Marshall was assailed while presiding 
over the court to which the accused was finally 
taken. 

From the moment that Wilkinson decided to de- 
nounce Burr to the President, his language became 
that of a Bombastes Furioso, his actions those of a 
military ruffian, his secret movements matched the 
cunning of a bribe-taking criminal. By swiftest dis- 
patch another message was sent to Jefferson. "My 
doubts have ceased," wrote Wilkinson, concerning 
" this deep, dark, wicked, and wide-spread conspiracy, 
embracing the young and the old, the democrat and 
the federalist, the native and the foreigner, the pa- 
triot of '76 and the exotic of yesterday, the opulent 
and the needy, the ins and the outs." 

Wilkinson assured Jefferson, however, that he 
would meet the awful emergency with " indefatigable 
industry, incessant vigilance and hardy courage"; 
indeed, declared he, "I shall glory to give my life" 
to defeat the devilish plot. But the numbers of the 
desperadoes were so great that, unless Jefferson 
heavily reinforced him with men and ships, he and 
the American army under his command would prob- 
ably perish. 1 

As the horse bearing the messenger to Jefferson 
disappeared in the forests, another, upon which rode 

1 Wilkinson to Jefferson, Nov. 12, 1806, Wilkinson: Memoirs, n, 
Appendix c. 



THE BURR CONSPIRACY 329 

a very different agent, left Wilkinson's camp and 
galloped toward the Southwest. The latter agent 
was Walter Burling, a corrupt factotum of Wilkin- 
son's, whom that martial patriot sent to the Spanish 
Viceroy at Mexico City to advise him of Wilkinson's 
latest service to Spain in thwarting Burr's attack 
upon the royal possessions, and in averting war be- 
tween the United States and His Catholic Majesty. 
For these noble performances Wilkinson demanded 
of the Spanish Viceroy more than one hundred and 
ten thousand dollars in cash, together with other 
sums which "he [had] been obliged to spend in order 
to sustain the cause of good government, order and 
humanity." l 

Wilkinson had asked the Viceroy to destroy the 
letter and this was accordingly done in Burling's 
presence. The Royal representative then told Burl- 
ing that he knew all about Burr's plans to invade 
Mexico, and had long been ready to repel a much 
larger force than Wilkinson stated Burr to be lead- 
ing. "I thanked him for his martial zeal and insinu- 
ated that I wished him happiness in the pursuit of 
his righteous intentions," wrote the disgusted and 
sarcastic Viceroy in his report to the Government at 

1 Iturrigaray to Cevallos, March 12, 1807, as quoted in McCaleb, 
169; and see Shepherd in Am. Hist. Rev. ix, 533 et seq. 

The thrifty General furnished Burling with a passport through the 
posts he must pass. ("Letters in Relation," as quoted in McCaleb, 
166.) 

Credentials to the Spanish official were also given Burling by one of 
Wilkinson's friends, Stephen Minor of Natchez, the man who had 
first set on foot the rumor of Burr's secession intentions. He was also 
in the pay of Spain. (lb. 166-67.) 

The Spaniards aided Burling on his journey in every way possible- 
(Herrera to Cordero, Dec. 1, 1806, as quoted in ib. 167-68.) 



330 JOHN MARSHALL 

Madrid. 1 With this Wilkinson had to be content, for 
the Viceroy refused to pay him a peso. 

Upon Burling's return, the vigilant American 
Commander-in-Chief forwarded to Jefferson a re- 
port of conditions in Mexico, as represented by 
Burling, together with a request for fifteen hun- 
dred dollars to pay that investigator's expenses. 2 
The sole object of Burling's journey was, Wilkinson 
Informed the President, to observe and report upon 
the situation in the great Spanish Vice-royalty as 
recent events had affected it, with respect to the 
interests of the United States; and Jefferson was as- 
sured by the General that his agent was the sound- 
est and most devoted of patriots. 3 

To back up the character he was now playing, 
Wilkinson showered warnings upon the officers of 
the Army and upon government officials in New 
Orleans. "The plot thickens. . . My God! what a 
situation has our country reached. Let us save it if 
we can. . . On the 15th of this month [November], 
Burr's declaration is to be made in Tennessee and 
Kentucky; hurry, hurry after me, and, if necessary, 
let us be buried together, in the ruins of the place we 
shall defend." This was a typical message to Colonel 
Gushing. 4 

Wilkinson dispatched orders to Colonel Freeman 
at New Orleans to repair the defenses of the city; 
but "be you as silent as the grave. . . You are sur- 

1 Iturrigaray to Cevallos, March 12, 1807, as quoted in McCaleb, 
168-69. 2 lb. 171. 

3 Wilkinson to Jefferson, March 12, 1807, "Letters in Relation," 
MSS. Lib. Cong. 

4 Wilkinson to Gushing, Nov. 7, 1806, Wilkinson: Memoirs, u, 
Appendix xcix. 



THE BURR CONSPIRACY 331 

rounded by secret agents." * He informed Governor 
Claiborne that "the storm will probably burst in 
New Orleans, where I shall meet it and triumph or 
perish." 2 Otherwise "the fair fabric of our inde- 
pendence . . will be prostrated, and the Goddess of 
Liberty will take her flight from the globe forever." 
Again and again, Wilkinson sounded the alarm. 
"Burr with rebellious bands may soon be at hand." 
Therefore, "civil institutions must . . yield to the 
strong arm of military law." 3 But Claiborne must 
"not breathe or even hint" that catastrophe was 
approaching. 

At last, however, Wilkinson unbosomed himself to 
the merchants of New Orleans whom he assembled 
for that purpose. Agents of the bandit chief were all 
around them, he said — he would have arrested 
them long since had he possessed the power. The 
desperadoes were in larger force than he had at first 
believed — "by all advices the enemy, at least 2000 
strong," would soon reach Natchez. They meant, 
first, to sack New Orleans and then to attack Mexico 
by land and sea. If successful in that invasion, "the 
Western States were then to be separated from the 
Union." But Wilkinson would "pledge his life in the 
defense of the city and his country." 4 

At that moment Burr had not even started down 
the Mississippi with his nine boats manned by sixty 
young men. 

1 Wilkinson to Freeman, Wilkinson : Memoirs, n, Appendix xcrx. 

2 Wilkinson to Claiborne, Nov. 12, 1806, ib. 328. 

3 Wilkinson to Claiborne, Dec. 6 and 7, 1806, as quoted in McCaleb, 
205-06. 

4 Ib. 209-10. 



332 JOHN MARSHALL 

For a time the city was thrown into a panic. 1 But 
Wilkinson had overblustered. The people, recovered 
from their fright, began to laugh. Thousands of 
fierce Vandals, brandishing their arms, on their way 
to take New Orleans, capture Mexico, destroy the 
Union! And this mighty force not now far away! 
How could that be and no tidings of it except from 
Wilkinson? That hero witnessed with dismay this 
turn of public sentiment. Ruthless action, then, or 
all his complicated performances would go for 
naught. Ridicule would be fatal to his plans. 

So General James Wilkinson, as head of the Army 
of the United States, began a reign of lawless vio- 
lence that has no parallel in American history. To 
such base uses can authority be put — with such 
peril to life and liberty is it invested — when un- 
checked by Constitutional limitation enforced by 
fearless and unprejudiced judges ! Men were arrested 
and thrown into prison on Wilkinson's orders, wholly 
without warrant of law. The first thus to be seized 
were Samuel Swartwout and Dr. Justus Erich Boll- 
mann. Their papers were confiscated; they were re- 
fused counsel, were even denied access to the courts. 
Soldiers carried them to a warship in the river which 
at once set sail with orders from Wilkinson for the 
delivery of the prisoners to the President at Wash- 
ington. 2 

1 Wilkinson to Clark, Dec. 10, 1806, Clark: Proofs, 150; also 
McCaleb, 212; and see Wilkinson to Claiborne, Dec. 15, 1806, as 
quoted in McCaleb, 213-14. 

2 Swartwout was treated in a manner peculiarly outrageous. Before 
his arrest Wilkinson had borrowed his gold watch, and afterward re- 
fused to return it. When the soldiers seized Swartwout they "hurried" 



THE BURR CONSPIRACY 333 

Another man similarly arrested was Peter V. Og- 
den of New York, nephew of Jonathan Dayton, who 
had been the companion of Swartwout in his long 
overland journey in quest of Wilkinson. Public- 
spirited lawyers swore out writs of habeas corpus for 
these three men. Not a syllable of evidence was ad- 
duced against Ogden, who by some mischance had 
not been transported with Bollmann and Swart- 
wout, and the court discharged him. 

In response to the order of the court to produce 
the bodies of Bollmann and Swartwout, Wilkinson 
sent his aide with the General's return to the proc- 
ess. As the " Commander of the Army of the United 
States," he said, he took on himself "all responsibil- 
ity . . resulting from the arrest of Erick Bollmann, 
who is accused of being guilty of the crime of 
treason against the government and the laws of the 
United States," and he had "taken opportune 
measures to warrant his safe delivery into the hands 
of the President." 

This had been done, avowed Wilkinson, solely in 

him across the river, lodged him " for several days & nights in a poor 
inhospitable shed — & deprived of the necessaries of life." 

Finally, when ordered to march with his guard — and being refused 
any information as to where he was to be taken — the prisoner de- 
clared that he was to be murdered and leapt into the river, crying, "I 
had as well die here as in the woods," whereupon "the 1/ drew up his 
file of six men & ordered them to shoot him. The soldiers directed 
their guns at him & snapt them, but owing to the great rain, 3 of the 
guns flashed in the pan, & the other's would not take fire. The men 
pursued & took him. But for the wetness of the powder this unfortu- 
nate young man must have be[en] murdered in very deed." 

Swartwout was not permitted to take his clothing with him on the 
ship that carried him to Baltimore; and the officer in charge of him was 
under orders from Wilkinson to put his prisoner in chains during the 
voyage. (Plumer, Feb. 21 , 1807, "Register," Plumer MSS. Lib. Cong.) 



334 JOHN MARSHALL 

order "to secure the nation which is menaced to its 
foundations by a band of traitors associated with 
Aaron Burr." To that end he would, he defiantly in- 
formed the court, "arrest, without respect to class 
or station, all those against whom [he had] positive 
proof of being accomplices in the machinations 
against the state." * This defiance of the courts was 
accompanied by a copy of Wilkinson's version of 
Burr's cipher letter and some memoranda by Boll- 
mann, together with Wilkinson's assertion that he 
had certain evidence which he would not, at that 
time, disclose. 

Jefferson had long demanded of Wilkinson a copy 
of the incriminating Burr letter, and this was now 
forwarded, together with the General's account of 
the arrest of Bollmann, Swartwout, and Ogden. In 
his report to the President, Wilkinson accused the 
judge who had released Ogden of being an asso- 
ciate of Burr in his "treasonable combinations," 
and characteristically added that he would "look 
to our country for protection" in case suit for dam- 
ages was brought against him by Bollmann and 
Swartwout. 2 

While Bollmann and Swartwout, in close confine- 
ment on the warship, were tossing on the winter 
seas, the saturnalia of defiance of the law continued 
in New Orleans. Ogden was again seized and incar- 
cerated. So was his friend, James Alexander of New 

1 Wilkinson's return reported in the Orleans Gazette, Dec. 18, 1306, 
as quoted in McCaleb, 217. It does not appear what return was made 
in the matter of the application for a writ of habeas corpus in favor 
of Swartwout. 

2 Wilkinson to Jefferson, printed in National Intelligencer, Jan. 23, 
1807, as quoted in McCaleb, 218. 



THE BURR CONSPIRACY 335 

York, who had displeased Wilkinson by suing out 
the writs of habeas corpus. Both were shortly taken 
to a military prison. Judges, leading lawyers, prom- 
inent citizens — all protested in vain. New writs of 
habeas corpus were issued and ignored. Edward 
Livingston sued out a writ of attachment * against 
Wilkinson. It was defied. The civil governor was 
appealed to; he was cowed and declined to act in 
this "delicate as well as dangerous" state of things. 
In despair and disgust Judge James Workman ad- 
journed the Orleans County Court sine die and re- 
signed from the Bench; 2 he too was seized by Wil- 
kinson's soldiers, and recovered his liberty only by 
the return of the Judge of the United States District 
Court, who dared the wrath of the military tyrant 
in order to release his imprisoned fellow judge. 3 

In the midst of this debauch of military lawless- 
ness, General John Adair, late one afternoon, rode 
into New Orleans. He had come on business, having 
sent three thousand gallons of whiskey and two boat- 
loads of provisions to be sold in the city, and expect- 
ing also to collect a debt of fifteen hundred dollars 
due him at that place; he had also intended to make 
some land deals. 

The moment Wilkinson heard of the arrival of his 
old friend and comrade, the General ordered "a cap- 
tain and one hundred soldiers" to seize Adair. This 
was done so peremptorily that he was not allowed to 
dine, "altho the provision was ready on the table"; 

1 This was one cause of Jefferson's hatred of Livingston. For the 
celebrated litigation between these men and the effect of it on Mar- 
shall and Jefferson, see vol. iv, chap, n, of this work. 

2 McCaleb, 219-21. 3 Hildreth, v, 613. 



336 JOHN MARSHALL 

he was denied medicine, which on account of illness 
he wished to take with him; he was refused extra 
clothing and was not even allowed "to give direc- 
tions respecting his horses which cost him $700 in 
Kentucky." Then the bewildered Adair was hurried 
on board a schooner and taken "down the river 25 
miles, landed on the other side . . and placed under 
a tent in a swamp." 

After he had been kept six days under guard 
in this situation, Adair "was shipped aboard the 
schooner Thatcher for Baltimore . . in the custody 
of Lt. Luckett." Wilkinson ordered the lieutenant to 
keep Adair in close confinement and to resist "with 
force and arms" any civil officer who might attempt 
to take Adair "by a writ of habeas corpus." 1 

The reason for this particular atrocity was that 
Wilkinson had written Adair the letters quoted 
above, and unless his correspondent were discred- 
ited and disgraced, he could convict Wilkinson of 
the very conspiracy with which Burr was being 
charged. 2 During his reign of terror to put down 

1 Plumer's resume of a letter from Adair to Clay. (Feb. 20, 1807, 
"Register," Plumer MSS. Lib. Cong.) 

For this outrage Adair, within a year, brought suit against Wilkin- 
son for false imprisonment. This was bitterly fought for ten years, but 
finally Adair secured judgment for $2500, "against which Wilkinson 
was indemnified by Congress." (Hildreth, v, 627.) 

For three or four years Adair continued in public disfavor solely 
because of his supposed criminal connection with Burr, of which his 
arrest by Wilkinson convinced the inflamed public mind. He slowly 
recovered, however, rendered excellent service as an officer in the War 
of 1812, and under Jackson commanded the Kentucky troops at the 
battle of New Orleans with distinguished gallantry. In 1820 the old 
veteran was elected Governor of Kentucky. Afterward he was chosen 
Representative in Congress from his district. 

2 Plumer's resume of Adair's letter to Clay, supra, note 1. Every 



THE BURR CONSPIRACY 337 

" treason, " the General was in secret communica- 
tion with the Spaniards, earning the bribe money 
which he was, and long had been, receiving from 
them. 1 

While Wilkinson at New Orleans was thus openly 
playing despot and secretly serving Spain, the Presi- 
dent's Annual Message was read to Congress. 

In this document Jefferson informed the National 
Legislature of the advance of the Spaniards toward 
American territory, the alarming posture of affairs, 
the quick response of the pioneers to the call of the 
Government for volunteers. "Having received in- 
formation," he said, "that, in another part of the 
United States, a great number of private individuals 
were combining together, arming and organizing 
themselves contrary to law, to carry on a military 
expedition against the territories of Spain [he] 
thought it necessary to take measures . . for sup- 
pressing this enterprise . . and bringing to justice 

word of Adair's startling account of his arrest was true. It was never 
even denied. John Watkins told Wilkinson of a conversation with 
Adair immediately after the latter's arrival which showed that no- 
body had reason to fear Burr: "He [Adair] observed . . that the bub- 
ble would soon burst & signified that the claims were without founda- 
tion & that he had seen nothing like an armament or preparations for 
a warlike expedition." (Watkins to Wilkinson, Jan. 14, 1807, Wilkin- 
son MSS. Chicago Hist. Soc.) 

Professor Cox has suggested to the author that Wilkinson's sum- 
mary arrest of Adair was to prevent the further circulation of his 
statement. 

1 "During the disturbances of Burr the aforesaid general [Wilkin- 
son] has, by means of a person in his confidence, constantly main- 
tained a correspondence with me, in which he has laid before me not 
only the information which he acquired, but also his intentions for the 
various exigencies in which he might find himself." (Folch to the Gov- 
ernor-General of Cuba, June 25, 1807, as quoted by Cox in Am. Hist. 
Rev. x, 839.) 



338 JOHN MARSHALL 

its authors and abettors." * Such was the slight 
reference made to the Burr "conspiracy." Thanks 
to the President's Proclamation, the "treasonable" 
plot of Aaron Burr was already on every tongue; but 
here, indeed, was an anti-climax. 

The Senate referred the brief paragraph of the 
President's Message relating to the conspiracy to a 
special committee. The committee took no action. 
Everybody was in suspense. What were the facts? 
Nobody knew. But the air was thick with surmise, 
rumor, conjecture, and strange fancies — none of 
them bearing the color of truth. 2 Marshall was then 

1 Jefferson's Message, Dec. 2, 1806, Annals, 9th Cong. 2d Sess. 12; 
Richardson, i, 406. 

2 "We have been, & still are, both amused & perplexed with the 
rumours, reports, & conjectures respecting Aaron Burr. They are 
numerous, various, & contradictory. . . I must have plenary evidence 
before I believe him capable of committing the hundredth part of 
the absurd & foolish things that are ascribed to him. . . The presi- 
dent of the United States, a day or two since, informed me that he 
knew of no evidence sufficient to convict him of either high crimes 
or misdemeanors." (Plumer to Jeremiah Mason, Jan. 4, 1807, 
Plumer MSS. Lib. Cong.) See also Plumer to Langdon, Dec. 1806, and 
to Livermore, Jan. 19, 1807, Plumer MSS. he. cit. 

These letters of Plumer's are most important. They state the gen- 
eral opinion of public men, especially Federalists, as expressed in their 
private conversations. 

"I never believed him to be a Fool," wrote John Adams to his 
most intimate friend. "But he must be an Idiot or a Lunatick if he 
has really planned and attempted to execute such a Project as is im- 
puted to him." Politicians have "no more regard to Truth than the 
Devil. . . I suspect that this Lying Spirit has been at Work concern- 
ing Burr. . . But if his guilt is as clear as the Noon day Sun, the first 
Magistrate ought not to have pronounced it so before a Jury had 
tryed him." (Adams to Rush, Feb. 2, 1807, Old Family Letters, 
128-29.) See also Adams to Pickering, Jan. 1, 1807, Pickering MSS. 
Mass. Hist. Soc; and Peters to Pickering, Feb. 1807, Pickering MSS. 
loc. cit. 

Marshall undoubtedly shared the common judgment, as his con* 
duct at Burr's trial abundantly shows. 



THE BURR CONSPIRACY 339 

in Washington and must have heard all these tales 
which were on every tongue. 

In two weeks from the time Jefferson's Message 
was read to Congress, John Randolph rose in his 
place in the House, and in a speech of sharp criti- 
cism both of Spain and of the President, demanded 
that the President lay before Congress any informa- 
tion in his possession concerning the conspiracy and 
the measures taken to suppress it. 1 

A heated debate followed. Jefferson's personal 
supporters opposed the resolution. It was, however, 
generally agreed, as stated by George W. Campbell 
of Tennessee, that " this conspiracy has been painted 
in stronger colors than there is reason to think it de- 
serves." There was no real evidence, said Campbell; 
nothing but "newspaper evidence." 2 Finally that 
part of the resolution calling for the facts as to the 
conspiracy was passed by a vote of 109 yeas to 14 
nays; while the clause demanding information as to 
the measures Jefferson had taken was carried by 67 
yeas to 52 nays. 3 

A week later the President responded in a Special 
Message. His information as to the conspiracy was, 
he said, a "voluminous mass," but there was in it 
"little to constitute legal evidence." It was "chiefly 
in the form of letters, often containing such a mix- 
ture of rumors, conjectures, and suspicions, as ren- 
ders it difficult to sift out the real facts." On Novem- 
ber 25, said Jefferson, he had received Wilkinson's 
letter exposing Burr's evil designs which the Gen- 
eral, "with the honor of a soldier and fidelity of a 
1 Annals, 9th Cong. 2d Sess. 336. 2 lb. 347. 3 lb. 357-58. 



340 JOHN MARSHALL 

good citizen," had sent him, and which, "when 
brought together" with some other information, 
"developed Burr's general designs." 1 

The President assured Congress that "one of 
these was the severance of the Union of these States 
beyond the Alleghany mountains; the other, an at- 
tack on Mexico. A third object was provided . . the 
settlement of a pretended purchase of a tract of 
country on the Washita." But "this was merely a 
pretext." Burr had soon found that the Western 
settlers were not to be seduced into secession; and 
thereupon, said Jefferson, the desperado "deter- 
mined to seize upon New Orleans, plunder the bank 
there, possess himself of the military and naval 
stores, and proceed on his expedition to Mexico." 
For this purpose Burr had "collected . . all the ar- 
dent, restless, desperate, and disaffected persons" 
within his reach. 

Therefore the President made his Proclamation 
of November 27, which had thwarted Burr's pur- 
poses. In New Orleans, however, General Wilkin- 
son had been forced to take extreme measures for 
the defense of the country against the oncoming 
plunderers. Among these was the seizure of Boll- 
mann and Swartwout who were "particularly em- 
ployed in the endeavor to corrupt the General and 
the Army of the United States," and who had been 
sent oversea by Wilkinson for "ports in the Atlan- 
tic states, probably on the consideration that an 
impartial trial could not be expected . . in New 

1 Annals, 9th Cong. 2d Sess. 39-41. Jefferson's Message, Jan. 22, 
1807, Richardson, i, 412-17. 



THE BURR CONSPIRACY 341 

Orleans, and that the city was not as yet a safe 
place of confinement." 1 

As to Burr, Jefferson assured Congress that his 
"guilt is placed beyond question" 2 

With this amazing Message the President sent an 
affidavit of Wilkinson's, as well as two letters from 
that veracious officer, 3 and a copy of Wilkinson's 
version of Burr's letter to him from which the Gen- 
eral had carefully omitted the fact that the im- 
prudent message was in answer to a dispatch from 
himself. But Jefferson did not transmit to Con- 
gress the letter, dated October 21, 1806, which he 
had received from Wilkinson. 

Thoughtful men, who had personally studied 
Burr for years and who were unfriendly to him, 
doubted the accuracy of Wilkinson's version of the 
Burr dispatch: "It sounds more like Wilkinson's 
letter than Burr's," Senator Plumer records in his 
diary. "There are . . some things in it quite irrele- 
vant. . . Burr's habits have been never to trust him- 
self on paper, if he could avoid it — when he wrote, 
it was with great caution. . .Wilkinson is not an 
accurate correct man." 4 

No such doubts, however, assailed the eager mul- 
titude. The awful charge of treason had now been 

1 Annals, 9th Cong. 2d Sess. 43; Richardson, i, 416. 

2 Annals, 9th Cong. 2d Sess. 40. (Italics the author's.) 

3 "Wilkinson's letter is a curiosity. . . Tis Don Adriano de Ar- 
mado the second." (J. Q. Adams to L. C. Adams, Dec. 8, 1806, Writ- 
ings, J. Q. A.: Ford, in, footnote to 157.) 

4 Plumer, Jan. 22, 1807, "Diary," Plumer MSS. Lib. Cong. 
Senator Plumer wrote his son, concerning Wilkinson's account of 

Burr's letter: "I am satisfied he has not accurately decyphered it. 
There is more of Wilkinsonism than of Burrism in it." (Plumer to 
his son, Jan. 24, 1807, Plumer MSS. Lib. Cong.) 



342 JOHN MARSHALL 

formally made against Burr by the President of the 
United States. This, the most sensational part of 
Jefferson's Message, at once caught and held the at- 
tention of the public, which took for granted the 
truth of it. From that moment the popular mind was 
made up, and the popular voice demanded the life of 
Aaron Burr. No mere trial in court, no adherence to 
rules of evidence, no such insignificant fact as the 
American Constitution, must be permitted to stand 
between the people's aroused loyalty and the mis- 
creant whom the Chief Executive of the Nation had 
pronounced guilty of treason. 



CHAPTER VII 

THE CAPTURE AND ARRAIGNMENT 

It was President Jefferson who directed and animated the prosecution. 

(Winfield Scott.) 
The President's popularity is unbounded and his will is that of the nation. 

(Joseph Nicholson.) 
The press from one end of the continent to the other has been enlisted to 
excite prejudices against Colonel Burr. (John Wickham.) 

Two thirds of our speeches have been addressed to the people. (George Hay.) 
It would be difficult or dangerous for a jury to acquit Burr, however inno- 
cent they might think him. (Marshall.) 

While Washington was still agitated by the Presi- 
dent's Special Message, the long winter voyage of 
Bollmann and Swartwout ended at Baltimore, and 
Burr's dazed dispatch-bearers were brought by 
military guards to the National Capital. There, on 
the evening of January 22, they were thrown into 
the military prison at the Marine Barracks, and 
"guarded, night and day, by an officer & 15 soldiers 
of the Marine Corps." 1 

The ship bearing James Alexander had made a 
swift passage. On its arrival, friends of this prisoner 
applied to Joseph F. Nicholson, now United States 
Judge at Baltimore, for a writ of habeas corpus. 
Alexander was at once set free, there being not the 
slightest evidence to justify his detention. 2 

1 Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong. Sena- 
tor PI umer adds: "The government are apprehensive that the arts 
& address of Bolivian, who effected the liberation of the Marquis de 
Lafayette from the strong prison of Magdeburge, may now find 
means to liberate himself." 

2 Clay to Prentiss, Feb. 15, 1807, Priv. Corres.: Colton, 15; also 
Works: Colton, iv, 14. 



344 JOHN MARSHALL 

A week or two later the schooner Thatcher, on 
board which was the disconsolate and dumbfounded 
General Adair — Wilkinson's fourth prisoner to be 
sent to Jefferson — tied up to its dock at Baltimore 
and he was delivered "over to the commander of 
the fort at that city." But a passenger on the vessel, 
"a stranger . . of his own accord . . assured [Adair] 
he would procure a writ of Habeas Corpus for him." 
Adair also was "immediately liberated, . . there being 
no evidence against him." * 

After the incarceration of Bollmann and Swart- 
wout in Washington, attorneys were secured for 
them and an application was made to Judge William 
Cranch, United States Judge for the District of Co- 
lumbia, for a writ of habeas corpus in their behalf, 
directed to Colonel Wharton, who was in command 
at Washington. Wharton brought the luckless pris- 
oners into court and stated that "he held them 
under the orders of his superior officer. They were 
then taken upon a bench warrant charging them 
with treason which superseded the writ. A motion 
was made by the prisoners council . . that they be 
discharged. The Court required evidence of their 
probable guilt." 2 

Jefferson now took a hand in the prosecution. 
He considered Wilkinson's affidavit insufficient 3 to 
hold Bollmann and Swartwout, and, in order to 

1 Plumer, Feb. 20, 1807, "Register," Plumer MSS. Lib. Cong. 

2 Plumer to Mason, Jan. 30, 1807, Plumer MSS. Lib. Cong. 
Plumer's account of the proceedings is trustworthy. He was an 

eminent lawyer himself, was deeply interested in the case, and was 
writing to Jeremiah Mason, then the leader of the New England bar. 

3 Eaton: Prentiss, 396. 



THE CAPTURE AND ARRAIGNMENT 345 

strengthen the case against them, secured from 
Eaton an affidavit stating the dire revelations which 
Eaton alleged Burr had made to him a year before. 1 
Eaton's theatrical story was thus given to the 
press, 2 and not only fortified the public conviction 
that a conspiracy to destroy the Union had been 
under way, but also horrified the country by the 
account of Burr's intention to assassinate Jefferson. 
The Attorney-General and the United States Dis- 
trict Attorney, representing the Government, de- 
manded that Bollmann and Swartwout be held; 
Charles Lee, Robert Goodloe Harper, and Francis S. 
Key, attorneys for the prisoners, insisted that they 
be released. Long was the argument and "vast" 
the crowd that heard it; "collected & firm" was the 
appearance of the accused men. 3 So universal was 

1 See supra, 303-05. 

Three days before he made oath to the truth of this story, Eaton's 
claim against the Government was referred to a committee of the 
House (see Annals, 9th Cong. 2d Sess. 383), and within a month 
from the time the historic affidavit was made, a bill was passed, with- 
out debate, "authorizing the settlement of the accounts between the 
United States and William Eaton." 

John Randolph was suspicious: "He believed the bill had passed by 
surprise. It was not so much a bill to settle the accounts of William 
Eaton, as to rip up the settled forms of the Treasury, and to transfer 
the accountable duties of the Treasury to the Department of State. It 
would be a stain upon the Statute Book." (lb. 622.) 

The very next week after the passage of this measure, Eaton re- 
ceived ten thousand dollars from the Government. (See testimony of 
William Eaton, Trials of Colonel Aaron Burr: Robertson, stenogra- 
pher, I, 483.) 

2 "Eaton's story . . has now been served up in all the newspa- 
pers. . . The amount of his narrative is, that he advised the President 
to send Burr upon an important embassy, because!!! he had discov- 
ered the said Burr to be a Traitor to his country" (J. Q. Adams to L. C. 
Adams, Dec. 8, 1806, Writings, J. Q. A.: Ford, m, footnote to 157.) 

3 Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong. 



346 JOHN MARSHALL 

the curiosity, says John Quincy Adams, that the 
Senate was "scarcely able here to form a quorum . . 
and the House . . actually adjourned.'' * The court 
decided that Bollmann and Swartwout should be 
sent back to prison "for trial without bail or main- 
prize." For the first time in our history a National 
court divided on political grounds. Judge Cranch, 
a Federalist first appointed by President Adams, 2 
thought that the prisoners should be discharged, 
but was overruled by his associates, Judges Nicho- 
las Fitzhugh and Allen Bowie Duckett, Republicans 
appointed by Jefferson. 3 

But John Marshall and the Supreme Court had 
yet to be reckoned with. Counsel for the reimpris- 
oned men at once applied to that tribunal for a writ 
of habeas corpus, and Marshall directed process to 
the jailer to show cause why the writ should not 
issue. 

An extreme and violent step was now taken to 
end the proceedings in court. On Friday, January 
23, 1807, the day after the President's Special Mes- 
sage denouncing Burr had been read in the Senate, 
Senator Giles, who, it should be repeated, was Jeffer- 
son's personal representative in that body, actually 
moved the appointment of a committee to draft a 
bill "to suspend the privilege of the writ of habeas 

1 J. Q. Adams to his father, Jan. 30, 1807, Writings, J. Q.A.: Ford, 
in, 159. 

8 Feb. 28, 1801, Journal Exec. Proc. Senate, I, 387. Cranch was 
so excellent a judge that, Federalist though he was, Jefferson reap- 
pointed him February 21, 1806. (Ib. n, 21.) 

8 Jefferson appointed Nicholas Fitzhugh of Virginia, November 22, 
1803 (ib. i, 458), and Allen Bowie Duckett of Maryland, February 28, 
1806 (ib. ii, 25). 



THE CAPTURE AND ARRAIGNMENT 347 

corpus." Quickly Giles himself reported the meas- 
ure, the Senate suspended its rules, and the bill was 
hurriedly passed, only Bayard of Delaware voting 
against it. 1 More astounding still, Giles recom- 
mended, and the Senate adopted, a special message 
to the House, stating the Senate's action "which 
they think expedient to communicate to you in con- 
fidence," and asking the popular branch of Congress 
to pass the Senate bill without delay. 2 

Immediately after the House convened on Mon- 
day, January 26, 3 Senator Samuel Smith of Mary- 
land appeared on the floor and delivered this "confi- 
dential message," together with the Senate bill, which 
provided that "in all cases, where any person or per- 
sons, charged on oath with treason, misprision of 
treason, or other high crime or misdemeanor . . shall 
be arrested or imprisoned . . the privilege of the writ 
of habeas corpus shall be . . suspended, for and during 
the term of three months." 4 

The House was astounded. Party discipline was, 
for the moment, wrathfully repudiated. Mr. Philip 
R. Thompson of Virginia instantly moved that the 
"message and the bill received from the Senate 
ought not to be kept secret and that the doors be 
opened." Thompson's motion was adopted by 123 
yeas to 3 nays. 

Then came a motion to reject the bill, followed by 
a brief and almost one-sided debate, which was little 

1 J. Q. Adams to his father, Jan. 27, 1807, Writings, J. Q. A.: Ford, 
in, 158. 

2 Annals, 9th Cong. 2d Sess. 44. 

3 On Friday afternoon the House adjourned till Monday morning. 

4 Annals, 9th Cong. 2d Sess. 402. 



348 JOHN MARSHALL 

more than the angry protest of the representatives 
of the people against the proposed overthrow of this 
last defense of liberty. William A. Bur well of Vir- 
ginia asked whether there was any danger "to jus- 
tify this suspension of this most important right of 
the citizen. . . He could judge from what he had 
already seen that men, who are perfectly innocent, 
would be doomed to . . undergo the infamy of the 
dungeon." 1 "Never," exclaimed John W. Eppes 
of the same State, "under this Government, has 
personal liberty been held at the will of a single 
individual." 2 

On the other hand, Joseph B. Varnum of Mas- 
sachusetts said that Burr's "insurrection" was the 
worst in all history. 3 James Sloan of New Jersey 
made a similar statement. 4 But the House promptly 
rejected the Senate bill by 113 yeas to 19 nays. The 
shameful attempt to prevent John Marshall from 
deciding whether Bollmann and Swartwout were en- 
titled to the benefit of the most sacred writ known to 
the law was thereby defeated and the Chief Justice 
was left free to grant or reject it, as justice might 
require. 

The order of the court of the District of Columbia 
was that Bollmann and Swartwout "be committed to 
prison of this court, to take their trial for treason 
against the United States, by levying war against 
them." 5 In the Supreme Court the prisoners and the 
Government were represented by the same counsel 
who had argued the case below, and Luther Martin 

1 Annals, 9th Cong. 2d Sess. 404-05. 

2 lb. 410. Eppes was Jefferson's son-in-law. 

3 lb. 412. 4 lb. 414-15. 6 4 Cranch, 76. 



THE CAPTURE AND ARRAIGNMENT 349 

also appeared in behalf of the men whose long-contin- 
ued and, as he believed, wholly illegal suffering had 
aroused the sympathies of that admirable lawyer. 

The Supreme Court first decided that it had juris- 
diction. The application for the writs of habeas cor- 
pus was, in effect, an appeal from the decision of the 
District Court. On this point Justice Johnson de- 
livered a dissenting opinion, observing, as an aside, 
that the argument for the prisoners had shown "an 
unnecessary display of energy and pathos." l The 
affidavit of General Wilkinson and his version of the 
Burr letter, concerning which "the court had diffi- 
culty," were admitted by a vote of the majority 
of the Justices. At noon on the twenty-first day of 
February, 1807, Marshall delivered the opinion of 
the majority of the court upon the main question, 2 
"whether the accused shall be discharged or held to 
trial." 

The specific charge was that of "treason in levy- 
ing war against the United States." This, declared 
Marshall, was the most serious offense of which any 
man can be accused: "As there is no crime which can 
more excite and agitate the passions of men than 
treason, no charge demands more from the tribunal 
before which it is made a deliberate and temperate 
inquiry. Whether this inquiry be directed to the fact 
or to the law, none can be more solemn, none more 

1 4 Cranch, 107. Justice Chase, who was absent because of ill- 
ness, concurred with Johnson. (Clay to Prentiss, Feb. 15, 1807, Priv. 
Corres.: Colton, 15; also Works: Colton, iv, 15.) 

Caesar A. Rodney, Jefferson's Attorney -General, declined to argue 
the question of jurisdiction. 

* 4 Cranch, 125-37. 



350 JOHN MARSHALL 

important to the citizen or to the government; none 
can more affect the safety of both." 

In order that it should never be possible to extend 
treason "to offenses of minor importance," the Con- 
stitution "has given a rule on the subject both to the 
legislatures and the courts of America, which neither 
can be permitted to transcend." Marshall then read, 
with solemn impressiveness, these words from the 
Constitution of the United States : " Treason against 
the United States shall consist only in levying war 
against them, or in adhering to their enemies, giving 
them aid and comfort." 

To support the charge against Bollmann and 
Swartwout, said Marshall, "war must be actually 
levied. . . To conspire to levy war, and actually to 
levy war, are distinct offenses. The first must be 
brought into open action by the assemblage of men 
for a purpose treasonable in itself, or the fact of levy- 
ing war cannot have been committed." It was not 
necessary for the commission of this crime that a 
man should actually "appear in arms against his 
country. . . If a body of men be actually assembled 
for the purpose of effecting by force a treasonable 
purpose; all those who perform any part, however 
minute, or however remote from the scene of the 
action, and who are actually leagued in the general 
conspiracy, are to be considered as traitors." J This 
passage was soon to cause Marshall great embarrass- 
ment when he was confronted with it in the trial of 
Aaron Burr at Richmond. 

Did this mean that men who go to the very edge 
1 4 Cranch, 125-26. 



THE CAPTURE AND ARRAIGNMENT 351 

of legal boundaries — who stop just short of com- 
mitting treason — must go scathless? By no means! 
Such offenses could be and must be provided for by 
statute. They were not, like treason, Constitutional 
crimes. "The framers of our Constitution . . must 
have conceived it more safe that punishment in such 
cases should be ordained by general laws, formed 
upon deliberation, under the influence of no resent- 
ments, and without knowing on whom they were to 
operate, than that it should be inflicted under the 
influence of those passions which the occasion seldom 
fails to excite, and which a flexible definition of the 
crime, or a construction which would render it flexi- 
ble, might bring into operation." 

This was a direct rebuke to Jefferson. There can 
be no doubt that Marshall was referring to the 
recent attempt to deprive Bollmann and Swartwout 
of the protection of the courts by suspending the 
writ of habeas corpus. "It is, therefore, more safe," 
continued Marshall, "as well as more consonant to 
the principles of our constitution, that the crime of 
treason should not be extended by construction to 
doubtful cases; and that crimes not clearly within the 
constitutional definition should receive such punish- 
ment as the legislature in its wisdom may provide." 

What do the words "levying war" mean? To 
complete that crime, Marshall repeated, "there must 
be an actual assemblage of men for the purpose of 
executing a treasonable design . . but no conspir- 
acy for this object, no enlisting of men to effect it, 
would be an actual levying of war." 1 He then 

* 4 Cranch, 127. 



352 JOHN MARSHALL 

applied these principles to the testimony. First he 
took up the deposition of Eaton * which, he said, 
indicated that the invasion of Mexico "was the 
immediate object" 2 that Burr had in mind. 

But, asked the Chief Justice, what had this to do 
with Bollmann and Swartwout? The prosecution 
connected the prisoners with the statements made 
in Eaton's deposition by offering the affidavit of 
General Wilkinson, which included his version of 
Burr's celebrated letter. Marshall then overruled 
the "great and serious objections made" to the ad- 
mission of Wilkinson's affidavit. One of these objec- 
tions was to that part which purported to set out the 
Wilkinson translation of the Burr cipher, the origi- 
nal letter not having been presented. Marshall an- 
nounced that "a division of opinion has taken place 
in the court," two of the Judges believing such tes- 
timony totally inadmissible and two others holding 
that it was proper to consider it "at this incipient 
stage of the prosecution." 

Thereupon Marshall analyzed Wilkinson's version 
of Burr's confidential cipher dispatch. 3 It was so 
vague, said the Chief Justice, that it "furnishes no 
distinct view of the design of the writer." But the 
"cooperation" which Burr stated had been secured 
"points strongly to some expedition against the 
territories of Spain." 

1 See supra, 303-05. 2 4 Cranch, 128-29. 

3 See Appendix D. 

In his translation Wilkinson carefully omitted the first sentence of 
Burr's dispatch: "Yours, post-marked 13th of May, is received." 
(Parton : Burr, 427.) This was not disclosed until the fact was extorted 
from Wilkinson at the Burr trial. (See infra, chap, vm.) 



THE CAPTURE AND ARRAIGNMENT 353 

Marshall then quoted these words of Burr's fa- 
mous message: '"Burr's plan of operations is to 
move down rapidly from the falls on the loth of 
November, with the first 500 or 1,000 men in the 
light boats now constructing for that purpose, to be 
at Natchez between the 5th and 15th of December, 
there to meet Wilkinson; then to determine whether 
it will be expedient in the first instance to seize on s 
or to pass by, Baton Rouge. The people of the coun- 
try to which we are going are prepared to receive us. 
Their agents now with Burr say that if we will pro- 
tect their religion, and will not subject them to a 
foreign power, in three weeks all will be settled.'" 

This language was, said Marshall, "rather more 
explicit." But "there is no expression in these sen- 
tences which would justify a suspicion that any 
territory of the United States was the object of the 
expedition. For what purpose seize on Baton Rouge? 
Why engage Spain against this enterprise, if it was 
designed against the United States?" 1 

Burr's statement that "the people of the country 
to which we are going are prepared to receive us," 
was, said Marshall, "peculiarly appropriate to a 
foreign country." And what was the meaning of the 
statement: "Their agents now with Burr say, that 
if we will protect their religion, and will not subject 
them to a foreign power, in three weeks all will be 
settled"? It was not probable that this referred to 
American citizens; but it perfectly fitted the Mexi- 
cans. "There certainly is not in the letter delivered 
to General Wilkinson . . one syllable which has a 
1 4 Cranch, 131-32. 



354 JOHN MARSHALL 

necessary or a natural reference to an enterprise 
against the territory of the United States." 

According to Wilkinson's affidavit, Swartwout 
knew the contents of the dispatch he was carry- 
ing; Wilkinson had deposed that Burr's messenger 
had frankly said so. Without stating that, in his 
long journey from New York through the Western 
States and Territories in quest of Wilkinson, he had 
"performed on his route any act whatever which 
was connected with the enterprise," Swartwout had 
declared " their object to be ' to carry an expedition to 
the Mexican provinces.' " * This, said Marshall, was 
"explanatory of the letter of Col. Burr, if the expres- 
sions of that letter could be thought ambiguous." 

But Wilkinson declared in his affidavit that 
Swartwout had also told him that "this territory 
would be revolutionized where the people were ready 
to join them, and that there would be some seizing, 
he supposed at New Orleans." 2 If this meant that 

1 4 Cranch, 132-33. 

2 Wilkinson declared in his affidavit that he "drew" from Swart- 
wout the following disclosures: "Colonel Burr, with the support of a 
powerful association, extending from New York to New Orleans, was 
levying an armed body of seven thousand men from the state of New 
York and the Western states and Territories" to invade Mexico which 
"would be revolutionized, where the people were ready to join them." 

"There would be some seizing, he supposed at New Orleans"; he 
"knew full well" that "there were several millions of dollars in the 
bank of this place," but that Burr's party only "meant to borrow and 
would return it — they must equip themselves at New Orleans, etc., 
etc." (Annals, 9th Cong. 2d Sess. 1014-15.) 

Swartwout made oath that he told Wilkinson nothing of the kind. 
The high character which this young man then bore, together with 
the firm impression of truthfulness he made on everybody at that 
time and during the distracting months that followed, would seem to 
suggest the conclusion that Wilkinson's story was only another of the 
brood of falsehoods of which that fecund liar was so prolific. 



THE CAPTURE AND ARRAIGNMENT 355 

the Government in any American territory was to 
be revolutionized by force, "although merely as a 
. . means of executing some greater projects, the 
design was unquestionably treasonable," said Mar- 
shall; "and any assemblage of men for that purpose 
would amount to a levying of war." It was, then, 
of first importance to discover the true meaning of 
the youthful and indiscreet messenger. 

For the third time the court divided. "Some of 
the judges," Marshall explained, suppose that these 
words of Swartwout "refer to the territory against 
which the expedition was intended; others to that in 
which the conversation was held. Some consider the 
words, if even applicable to a territory of the United 
States, as alluding to a revolution to be effected by 
the people, rather than by the party conducted by 
Col. Burr." 

Swartwout's statement, as given in Wilkinson's 
affidavit, that Burr was assembling thousands of 
armed men to attack Mexico, did not prove that 
Burr had gathered an army to make war on the 
United States. 1 If the latter were Burr's purpose, it 
was not necessary that the entire host should have 
met at one spot; if detachments had actually formed 
and were marching to the place of rendezvous, trea- 
son had been committed. Following his tedious 
habit of repeating over and over again, often in 
identical language, statements already clearly made, 
Marshall for the fourth time asserted that there 
must be "unequivocal evidence" of "an actual 
assemblage." 

1 4 Cranch, 133-34. 



356 JOHN MARSHALL 

The mere fact that Burr "was enlisting men in 
his service . . would not amount to levying war." 
That Swartwout meant only this, said Marshall, was 
* ' sufficiently apparent. ' ' If seven thousand men had 
actually come together in one body, every one would 
know about it; and surely, observed Marshall, 
"some evidence of such an assembling would have 
been laid before the court." 

Burr's intention to do certain "seizing at New 
Orleans" did not amount to levying war from any- 
thing that could be inferred from Swartwout's 
statement. It only "indicated a design to rob." 
Having thus examined all the testimony before the 
court, Marshall announced the opinion of the major- 
ity of the Justices that there was not "sufficient 
evidence of his [Swartwout's] levying war against 
the United States to justify his commitment on the 
charge of treason." * 

- The testimony against Bollmann was, if possible, 
still weaker. There was, indeed, "no evidence to 
support a charge of treason" against him. Whoever 
believed the assertions in Wilkinson's affidavit could 
not doubt that both Bollmann and Swartwout 
"were engaged in a most culpable enterprise against 
the dominions of a power at peace with the United 
States"; but it was apparent that "no part of this 
crime was committed in the District of Columbia." 
They could not, therefore, be tried in that District. 

Upon that point the court was at last unanimous. 
The accused men could have been tried in New 
Orleans — -"there existed a tribunal in that city," 

1 4 Cranch, 135. 



THE CAPTURE AND ARRAIGNMENT 357 

sarcastically observed Marshall; but to say that 
citizens might be seized by military power in the 
jurisdiction where the alleged crime was committed 
and thereafter tried "in any place which the general 
might select, and to which he might direct them 
to be carried," was not to be thought of — -such 
a thing " would be extremely dangerous." So the 
long-suffering Bollmann and Swartwout were dis- 
charged. 1 

Thus, by three different courts, five of the "con- 
spirators" had successively been released. In the 
case of Ogden, there was no proof; of Alexander, no 
proof; of Adair, no proof; of Bollmann and Swart- 
wout, no proof. And the Judges had dared to set free 
the accused men — had refused to consign them to 
prison, despite public opinion and the desire of the 
Administration. Could anything be more undemo- 
cratic, more reprehensible? The Supreme Court, 
especially, should be rebuked. 

On learning of that tribunal's action, Giles ad- 
journed the meeting of his committee on the trea- 
son bill in order to secure immediately a copy of 
Marshall's opinion. In a true Virginian rage, Giles 
threatened to offer an amendment to the Constitu- 
tion "taking away all jurisdiction of the Supreme 
Court in criminal cases." There was talk of impeach- 
ing every occupant of the Supreme Bench. 2 

More news had now reached Washington concern- 
ing the outrages committed at New Orleans; and on 
the day that the attorneys for Bollmann and Swart- 

1 4 Cranch, 136. 

2 Feb. 21, 1807, Memoirs, J. Q. A.: Adams, i, 459. 



358 JOHN MARSHALL 

wout applied to the Supreme Court for writs of ha- 
beas corpus, James M. Broom of Delaware rose in 
the House, and introduced a resolution "to make 
further provision for securing the privilege of the 
writ of habeas corpus to persons in custody under 
or by color of the authority of the United States." * 
While the cases were being argued in the Supreme 
Court and the divided Judges were wrangling over 
the disputed points, a violent debate sprang up in 
the House over Broom's resolution. "If, upon every 
alarm of conspiracy," said Broom, "our rights of 
personal liberty are to be entrusted to the keeping of 
a military commander, we may prepare to take our 
leave of them forever." 2 All day the debate con- 
tinued; on the next day, February 18, while Mar- 
shall was delivering his opinion that the Supreme 
Court had jurisdiction of the application of Boll- 
mann and Swart wout, the controversy in the House 
was renewed. 

James Elliot of Vermont said that "most of the 
privileges intended to be secured" by the Fourth, 
Fifth, and Sixth Amendments 3 "have recently been 

1 Annals, 9th Cong. 2d Sess. 472. 2 76. 506. 

3 They are: "Article IV. The right of the people to be secure 
in their persons, houses, papers and effects, against unreasonable 
searches and seizures, shall not be violated, and no warrants shall 
issue but upon probable cause, supported by oath or affirmation, and 
particularly describing the place to be searched, and the persons or 
things to be seized. 

"Article V. No person shall be held to answer for a capital or other- 
wise infamous crime, unless on a presentment or indictment of a 
grand jury, except in cases arising in the land or naval forces, or in 
the militia when in actual service in time of war or public danger; 
nor shall any person be subject for the same offence to be twice put in 
jeopardy of life or limb; nor shall be compelled, in any criminal case, to 
be witness against himself, nor be deprived of life, liberty, or prop- 



THE CAPTURE AND ARRAIGNMENT 359 

denied . . at the point of the bayonet, and under 
circumstances of peculiar violence." He read Wil- 
kinson's impertinent return to the Orleans County 
Court. This, said Elliot, was "not obedience to 
the laws . . but . . defiance. . . What necessity could 
exist for seizing one or two wandering conspirators, 
and transporting them fifteen hundred or two thou- 
sand miles from the Constitutional scene of inquisi- 
tion and trial, to place them particularly under the 
eye of the National Government"? * Not only was 
the swish of the party whip heard in the House, 
he asserted, but members who would not desert 
the fundamentals of liberty must "be prepared for 
the insinuation that we countenance treason, and 
sympathize with traitors." 2 

The shrill voice of John Randolph was heard. 
Almost his first sentence was a blow at Jefferson. If 
the President and his party "ever quit the ground of 
trial by jury, the liberty of the press, and the subor- 
dination of the military to the civil authority, they 
must expect that their enemies will perceive the de- 
sertion and avail themselves of the advantage." 3 
Randolph assailed the recent attempt to suspend 
the writ of habeas corpus which, he said, "was in- 

erty, without due process of law; nor shall private property be taken 
for public use without just compensation. 

"Article VI. In all criminal prosecutions the accused shall enjoy 
the right to a speedy and public trial, by an impartial jury of the 
state and district wherein the crime shall have been committed, 
which district shall have been previously ascertained by law, and to 
be informed of the nature and cause of the accusation; to be con- 
fronted with the witnesses against him; to have compulsory process 
for obtaining witnesses in his favour, and to have the assistance of 
counsel for his defence." 

1 Annals, 9th Cong. 2d Sess. 531. 2 lb. 532-33. 3 lb. 535. 



360 JOHN MARSHALL 

tended . . to cover with a mantle the most daring 
usurpation which ever did, will, or can happen, in 
this or any country. There was exactly as much 
right to shoot the persons in question as to do what 
has been done." : The Declaration of Independence 
had assigned wrongs of precisely the kind suffered by 
Bollmann and Swartwout "as one of the grievances 
imposed by the British Government on the colonies. 
Now, it is done under the Constitution," exclaimed 
Randolph, "and under a republican administration, 
and men are transported without the color of law, 
nearly as far as across the Atlantic." 2 

Again and again angry speakers denounced the 
strenuous attempts of the Administration's sup- 
porters to influence Republican votes on partisan 
grounds. Only by the most desperate efforts was 
Jefferson saved from the rebuke and humiliation of 
the passage of the resolution. But his escape was 
narrow. Indefinite postponement was voted by the 
dangerous majority of 2 out of a total of 118 mem- 
bers. 3 

While Burr's messengers were on the high seas, 
prisoners of war, and Wilkinson at New Orleans 
was saving the Republic by rending its laws, Burr 
himself, ignorant of all, was placidly making his way 
down the Ohio and Mississippi with his nine boats 
and sixty adventurers, mostly youths, many only 
boys. He had left Jackson at Nashville on Decem- 
ber 22, and floating down the Cumberland in two 
unarmed boats, had joined the remainder of the 
little expedition. 

1 Annals, 9th Cong. 2d Sess. 536. 2 lb. 537-38. 3 lb. 589- 



THE CAPTURE AND ARRAIGNMENT 361 

He then met for the first time the young ad- 
venturers whom Blennerhassett, Comfort Tyler of 
Syracuse, New York, and Davis Floyd of the tiny 
settlement of New Albany, Indiana Territory, had 
induced to join the expedition. On a cold, rainy De- 
cember morning they were drawn up in a semi-circle 
on a little island at the mouth of the Cumberland 
River, and Burr was introduced to each of them. 
Greeting them with his customary reserved friendli- 
ness, he told them that the objects of the expedition 
not already disclosed to them would be revealed at 
a more opportune time. 1 

Such was the second "overt act" of the gathering 
of an armed host to "levy war" on the United 
States for which Jefferson later fastened the charge 
of treason upon Aaron Burr. 

As it floated down the Ohio and Mississippi, the 
little flotilla 2 stopped at the forts upon the river 
bluffs, and the officers proffered Burr all the courte- 
sies at their command. Seven days after Burr had 
left Fort Massac, Captain Bissel, in answer to a let- 
ter of inquiry from Andrew Jackson, assured him 
that "there has nothing the least alarming ap- 
peared"; Burr had passed with a few boats "having 
nothing on board that would even suffer a conjec- 
ture, more than a man bound to market." 3 John 

1 Nearly all the men had been told that they were to settle the 
Washita lands; and this was true, as far as it went. (See testimony of 
Stephen S. Welch, Samuel Moxley, Chandler Lindsley, John Mulhol- 
lan, Hugh Allen, and others, Annals, 10th Cong. 1st Sess. 463 et seq.) 

2 The boats were very comfortable. They were roofed and had com- 
partments for cooking, eating, and sleeping. They were much like the 
modern house boat. 

3 Bissel to Jackson, Jan. 5, 1807, Annals, 9th Cong. 2d Sess. 1017-1& 



362 JOHN MARSHALL 

Murrell of Tennessee, sent on a secret mission o\. 
investigation, reported to Jackson that, pursuant to 
instructions, he had closely followed and examined 
Burr's movements on the Cumberland; that he had 
heard reports that Burr "had gone down the river 
with one thousand armed men"; but Murrell had 
found the fact to be that there were but ten boats 
with only "sixty men on board," and "no appear- 
ance of arms." 1 

During the week when John Randolph, in the 
House, was demanding information of the President, 
and Wilkinson, in New Orleans, was making his 
second series of arrests, Burr, with his little group 
of boats and small company of men — totally un- 
equipped for anything but the settlement of the 
Washita lands, and poorly supplied even for that — 
serenely drew up to the landing at the small post of 
Bayou Pierre in the Territory of Mississippi. He 
was still uninformed of what was going forward at 
New Orleans and at Washington — still unconscious 
of the storm of hatred and denunciation that had 
been blown up against him. 

At the little settlement, Burr learned for the first 
time of the fate prepared for him. Bloody and vio- 
lent were the measures he then adopted ! He wrote a 
letter to Cowles Mead, Acting Governor of the Ter- 
ritory, stating that rumors he had just heard were 
untrue; that "his object is agriculture and his boats 
are the vehicles of immigration." But he "hinted 
at resistance to any attempt to coerce him." 2 

1 Murrell to Jackson, Jan. 8, 1807, Annals, 9th Cong. 2d Sess. 1017. 
8 Mead to the Secretary of War, Jan. 13, 1807, ib. 1018. 



THE CAPTURE AND ARRAIGNMENT 363 

What followed was related by Mead himself. As 
directed by the War Department, he had prorogued 
the Legislature, put the Territory in a state of de- 
fense, and called out the militia. When Burr's letter 
came, Mead ordered these frontier soldiers to "ren- 
dezvous at certain points. . . With the promptitude 
of Spartans, our fellow-citizens shouldered their 
firelocks, and in twenty -four hours I had the honor 
to review three hundred and seventy-five men at 
Natches, prepared to defend their country." Mead 
sent two aides to Burr, "who tendered his respects 
to the civil authority." The Acting Governor him- 
self then saw Burr, whereupon the desperado actu- 
ally "offered to surrender himself to the civil author- 
ity of the Territory, and to suffer his boats to be 
searched." This was done by "four gentlemen of 
unquestionable respectability, with a detachment of 
thirty men." Burr readily went into court and 
awaited trial. 

"Thus, sir," concludes Governor Mead, "this 
mighty alarm, with all its exaggeration, has even- 
tuated in nine boats and one hundred men, 1 and 
the major part of these are boys, or young men 
just from school," wholly unaware of Burr's evil 
designs. 2 

The Legislature of the Territory of Orleans had 
just convened. Governor Claiborne recommended 
that a law be passed suspending the writ of habeas 
corpus. Behind closed doors the Representatives 

1 Burr had picked up forty men on his voyage down the Missis- 
sippi. 

2 Mead to the War Department, Jan. 19, 1807, Annals, 9th Cong. 
M Sess. 1019. 



364 JOHN MARSHALL 

were harangued by Wilkinson on the subject of the 
great conspiracy. All the old horrors were again 
paraded to induce the legislators to support Wilkin- 
son in his lawless acts. Instead, that body denied the 
existence of treason in Louisiana, expressed alarm at 
the "late privation" of the rights of American citi- 
zens, and determined to investigate the "measures 
and motives" of Wilkinson. A memorial to Congress 
was adopted, denouncing "the acts of high-handed 
military power . . too notorious to be denied, too 
illegal to be justified, too wanton to be excused," by 
which "the temple of justice" had been "sacrile- 
giously rifled." l 

In Mississippi, Burr calmly awaited his trial be- 
fore the United States Court of that Territory. Bail 
in the sum of five thousand dollars had been fur- 
nished by Colonel Benijah Osmun and Lyman Hard- 
ing, two Revolutionary comrades of Burr, who years 
before had emigrated to Mississippi and developed 
into wealthy planters. Colonel Osmun invited Burr 
to be his guest. Having seen the ogre and talked with 
him, the people of the neighborhood became Burr's 
enthusiastic friends. 

Soon the grand jury was impaneled to investigate 
Burr's "crimes" and indict him for them if a true 
bill could be found. This body outdid the perform- 
ance of the Kentucky grand jury nine weeks earlier. 
The grand jurors asserted that, after examining the 

1 McCaleb, 233-36. For the discussion over this resolution see 
Debate in the House of Representatives of the Territory of Orleans, on a 
Memorial to Congress, respecting the illegal conduct of General Wilkin- 
son. Both sides of the question were fully represented. See also Cox, 
194, 200. 206-08. 



THE CAPTURE AND ARRAIGNMENT 365 

evidence, they were "of the opinion that Aaron 
Burr has not been guilty of any crime or misde- 
meanor against the laws of the United States or of 
this Territory or given any just alarm or inquietude 
to the good people of this Territory." Worse still 
followed — the grand jury formally presented as "a 
grievance" the march of the militia against Burr, 
since there had been no prior resistance by him to 
the civil authorities. Nor did the grand jurors stop 
there. They also presented "as a grievance, destruc- 
tive of personal liberty," Wilkinson's military out- 
rages in New Orleans. 1 

When the grand jury was dismissed, Burr asked to 
be discharged and his sureties released from his 
bond. The judge was Thomas Rodney, the father 
of Csesar A. Rodney whom Jefferson soon afterward 
appointed Attorney-General. Judge Rodney out- 
Wilkinsoned Wilkinson; he denied Burr's request 
and ordered him to renew his bond or go to jail. This 
was done despite the facts that the grand jury had 
refused to indict Burr and that there was no legal 
charge whatever before the court. 

Wilkinson was frantic lest Burr escape him. Every 
effort was made to seize him; officers in disguise 
were sent to capture him, 2 and men "armed with 
Dirks & Pistolls" were dispatched to assassinate 
him. 3 Burr consulted Colonel Osmun and other 

1 Return of the Mississippi Grand Jury, Feb. 3, reported in the 
Orleans Gazette, Feb. 20, 1807, as quoted in McCaleb, 272-73. 

2 Annals, 10th Cong. 1st Sess. 528-29, 536, 658-61. 

3 Deposition of George Peter, Sept. 10, 1807, Am. State Papers, 
Misc. I, 566; and see Quarterly Pub. Hist, and Phil. Soc. of Ohio, rx, 
Nos. 1 and 2, 35-38; McCaleb, 274-75; Cox, 200-08. 



$m JOHN MARSHALL 

friends, who advised him to keep out of sight for a 
time. So he went into hiding, but wrote the Gov- 
ernor that he would again come before the court 
when he could be assured of being dealt with legally. 

Thereupon the bond of five thousand dollars, 
which Judge Rodney had compelled Burr to give, 
was declared forfeited and a reward of two thousand 
dollars was offered for his apprehension. From his 
place of retreat the harried man protested by letter. 
The Governor would not relent. Wilkinson was rag- 
ing in New Orleans. Illegal imprisonment, probably 
death, was certain for Burr if he should be taken. 
His friends counseled flight, and he acted on their 
judgment. 1 

But he would not go until he had seen his discon- 
solate followers once more. Stealthily visiting his 
now unguarded flotilla, he told his men to take for 
themselves the boats and provisions, and, if they 
desired, to proceed to the Washita lands, settle 
there, and keep as much as they wanted. He had 
stood his trial, he said, and had been acquitted; but 
now he was to be taken by unlawful violence, and 
the only thing left for him to do was to "flee from 
oppression." 2 

Colonel Osmun gave him the best horse in his 
stables. Clad "in an old blanket-coat begirt with a 
leathern strap, to which a tin cup was suspended on 
the left and a scalping knife on the right," Aaron 
Burr rode away into the wilderness. 

At ten o'clock of a rainy night, on the very da;y 
when Marshall delivered his first opinion in the case 
1 McCaleb, 277. 2 lb. 



THE CAPTURE AND ARRAIGNMENT 367 

of Bollinann and Swartwout, Burr was recognized 
at a forest tavern in Washington County, 1 where 
he had stopped to inquire the way to the house of 
Colonel Hinson, whom he had met at Natchez on 
his first Western journey and who had invited Burr 
to be his guest if he ever came to that part of the 
Territory. " Major " Nicholas Perkins, a burly back- 
woods lawyer from Tennessee, penetrated the dis- 
guise, 2 because of Burr's fine eyes and erect carriage. 

Perkins hurried to the cabin of Theodore Bright- 
well, sheriff of the county, and the two men rode 
after Burr, overtaking him at the residence of 
Colonel Hinson, who was away from home and 
whose wife had prepared supper for the wanderer. 
Brightwell went inside while Perkins remained in the 
downpour watching the house from the bushes. 

Burr so won the hearts of both hostess and sheriff 
that, instead of arresting him, the officer proposed 
to guide the escaping criminal on his way the next 
morning. 3 The drenched and shivering Perkins, feel- 
ing that all was not right inside the cabin, hastened 
by horse and canoe to Fort Stoddert and told Cap- 
tain Edward P. Gaines of Burr's whereabouts. With 
a file of soldiers the captain and the lawyer set off to 
find and take the fugitive. They soon met him with 
the sheriff, who was telling Burr the roads to follow. 

Exclusively upon the authority of Jefferson's Proc- 

1 In that part of the Territory which is now the State of Alabama. 

2 Perkins had read and studied the description of Burr in one of the 
Proclamations which the Governor of Mississippi had issued. A large 
reward for the capture of Burr was also offered, and on this the mind 
of Perkins was now fastened. 

3 Pickett: History of Alabama, 218-31. 



368 JOHN MARSHALL 

lamation, Burr was arrested and confined in the fort. 
With quiet dignity, the "traitor" merely protested 
and asked to be delivered to the civil courts. His 
arrest was wholly illegal, he correctly said; let a 
judge and jury again pass on his conduct. But seiz- 
ure and incarceration by military force, utterly with- 
out warrant of law, were a denial of fundamental 
rights — rights which could not be refused to the 
poorest citizen or the most abandoned criminal. 1 

Two weeks passed before Burr was sent north- 
ward. During this period all within the stockades 
became his friends. The brother of Captain Gaines 
fell ill and Burr, who among other accomplish- 
ments knew much about medicine, treated the sick 
man and cheered him with gay conversation. The 
soldiers liked Burr; the officers liked him; their 
wives liked him. Everybody yielded to his strange 
attractiveness. 

Two weeks after Marshall discharged Bollmann 
and Swartwout at Washington, Burr was delivered 
by Captain Gaines to a guard of nine men organized 
by Perkins; and, preceded and followed by them, he 
began the thousand-mile journey to Washington. 
For days torrential rains fell; streams were swollen; 
the soil was a quagmire. For hundreds of miles the 
only road was an Indian trail ; wolves filled the for- 
est; savage Indians were all about. 2 At night the 

1 Yet, five months afterward, Jefferson actually wrote Captain 
Gaines: " That the arrest of Colo. B. was military has been disproved; 
but had it been so, every honest man & good citizen is bound, by any 
means in his power, to arrest the author of projects so daring & dan, 
gerous." (Jefferson to Gaines, July 23, 1807, Works: Ford, x, 473.) 

2 Pickett, 224-25. 



THE CAPTURE AND ARRAIGNMENT 369 

party, drenched and chilled, slept on the sodden 
earth. Burr never complained. 

After ten days the first white settlements ap- 
peared. In two days more, South Carolina was 
reached. The cautious Perkins avoided the larger 
settlements, for Burr was popular in that State and 
his captor would run no risks of a rescue. As the 
prisoner and his convoy were passing through a vil- 
lage, a number of men were standing before a tav- 
ern. Burr suddenly threw himself from his horse and 
cried: "I am Aaron Burr, under military arrest, and 
claim the protection of the civil authorities." 

Before any one could move, Perkins sprang to 
Burr's side, a pistol in each hand, and ordered him 
to remount. Burr refused; and the gigantic fron- 
tier lawyer lifted the slight, delicate prisoner in his 
hands, threw him into his saddle, and the sorry cav- 
alcade rode on, guards now on either side, as well as 
before and behind their charge. Then, for the first 
and last time in his life, Burr lost his composure, but 
only for a moment; tears filled his eyes, but instantly 
recovering his self-possession, he finished the re- 
mainder of that harrowing trip as courteous, digni- 
fied, and serene as ever. 1 

At Fredericksburg, Virginia, Perkins received or- 
ders from the Government to take his prisoner to 
Richmond instead of to Washington. John Ran- 
dolph describes the cavalcade: "Colonel Burr . . 
passed by my door the day before yesterday under 
a strong guard. . . To guard against enquiry as 

1 For the account of Burr's arrest and transfer from Alabama to 
Richmond, see Pickett, 218-31. Parton adopts Pickett's narrative, 
adding only one or two incidents; see Parton: Burr, 444-52. 



370 JOHN MARSHALL 

much as possible he was accoutred in a shabby suit 
of homespun with an old white hat flopped over his 
face, the dress in which he was apprehended." * 

In such fashion, when the candles were being 
lighted on the evening of Thursday, March 26, 1807, 
Aaron Burr was brought into the Virginia Capital, 
where, before a judge who could be neither fright- 
ened nor cajoled, he was to make final answer to the 
charge of treason. 

Burr remained under military guard until the ar- 
rival of Marshall at Richmond. The Chief Justice 
at once wrote out, 2 signed, and issued a warrant by 
virtue of which the desperate yet composed prisoner 
was at last surrendered to the civil authorities, be- 
fore whom he had so long demanded to be taken. 

During the noon hour on Monday, March 30, 
Marshall went to "a retired room" in the Eagle 
Tavern. In this hostelry Burr was confined. Curi- 
ous citizens thronged the big public room of the inn 
and were "awfully silent and attentive" as the pale 
and worn conspirator was taken by Major Joseph 
Scott, the United States Marshal, and two dep- 
uties through the quiet but hostile assemblage to 
the apartment where the Chief Justice awaited him. 
To the disappointment of the crowd, the door was 
closed and Aaron Burr stood before John Marshall. 3 

George Hay, the United States District Attorney, 
had objected to holding even the beginning of the 
preliminary hearing at the hotel, because the great 

1 Randolph to Nicholson, March 25, 1807, Adams: Randolph, 220. 

2 The warrant was written by Marshall himself. (MS. Archives of 
the United States Court, Richmond, Va.) 

8 Burr Trials, I, 1. 



THE CAPTURE AND ARRAIGNMENT 371 

number of eager and antagonistic spectators could 
not be present. Upon the sentiment of these, as will 
be seen, Hay relied, even more than upon the law 
and the evidence, to secure the conviction of the 
accused man. He yielded, however, on condition 
that, if any discussion arose among counsel, the 
proceedings should be adjourned to the Capitol. 1 

It would be difficult to imagine two men more 
unlike in appearance, manner, attire, and charac- 
teristics, than the prisoner and the judge who now 
confronted each other; yet, in many respects, they 
were similar. Marshall, towering, ramshackle, bony, 
loose-jointed, negligently dressed, simple and un- 
conventional of manner; Burr, undersized and erect, 
his apparel scrupulously neat, 2 his deportment that 
of the most punctilious society. Outwardly, the two 
men resembled each other in only a single particu- 
lar: their eyes were as much alike as their persons 
were in contrast. 3 Burr was fifty years of age, and 
Marshall was less than six months older. 

Both were calm, admirably poised and self-pos- 
sessed; and from the personality of each radiated a 
strange power of which no one who came near either 
of them could fail to be conscious. Intellectually, 
also, there were points of remarkable similarity. 
Clear, cold logic was the outstanding element of 
their minds. 

1 Burr Trials, i, 1. 

2 The first thing that Burr did upon his arrival at Richmond was to 
put aside his dirty, tattered clothing and secure decent attire. 

3 Marshall's eyes were "the finest ever seen, except Burr's, large, 
black and brilliant beyond description. It was often remarked during 
the trial, that two such pairs of eyes had never looked into one an- 
other before." (Parton: Burr, 459.) 



372 JOHN MARSHALL 

The two men had the gift of lucid statement, 
although Marshall indulged in tiresome repetition 
while Burr never restated a point or an argument. 
Neither ever employed imagery or used any kind 
of rhetorical display. Notwithstanding the rigidity 
of their logic, both were subtle and astute; it was 
all but impossible to catch either off his guard. But 
Marshall gave the impression of great frankness; 
while about every act and word of Burr there was 
the air of mystery. The feeling which Burr's actions 
inspired, that he was obreptitious, was overcome by 
the fascination of the man when one was under his 
personal influence; yet the impression of indirectness 
and duplicity which he caused generally, together 
with his indifference to slander and calumny, 1 made 
it possible for his enemies, before his Western ven- 
ture, to build up about his name a structure of public 
suspicion, and even hatred, wholly unjustified by the 
facts. 

The United States District Attorney laid before 
Marshall the record in the case of Bollmann and 
Swartwout in the Supreme Court, and Perkins 
proudly described how he had captured Burr and 
brought him to Richmond. Hay promptly moved 
to commit the accused man to jail on the charges of 
treason and misdemeanor. The attorneys on both 
sides agreed that on this motion there must be 
argument. Marshall admitted Burr to bail in the 
sum of five thousand dollars for his appearance 
the next day at the court-room in the Capitol. 

When Marshall opened court the following morn- 

1 It was a rule of Burr's life to ignore attacks upon him. (See supra, 
280.) 



THE CAPTURE AND ARRAIGNMENT 373 

ing, the room was crowded with spectators, while 
hundreds could not find admittance. Hay asked 
that the court adjourn to the House of Delegates, in 
order that as many as possible of the throng might 
hear the proceedings. Marshall complied, and the 
eager multitude hurried pell-mell to the big ugly 
hall, where thenceforth court was held throughout 
the tedious, exasperating months of this historic 
legal conflict. 

Hay began the argument. Burr's cipher letter to 
Wilkinson proved that he was on his way to attack 
Mexico at the time his villainy was thwarted by the 
patriotic measures of the true-hearted commander 
of the American Army. Hay insisted that Burr had 
intended to take New Orleans and "make it the 
capital of his empire." The zealous young District 
Attorney "went minutely into . . the evidence." 
The prisoner's stealthy "flight from justice" showed 
that he was guilty. 

John Wickham, one of Burr's counsel, answered 
Hay. There was no testimony to show an overt act 
of treason. The alleged Mexican project was not 
only "innocent, but meritorious"; for everybody 
knew that we were "in an intermediate state be- 
tween war and peace" with Spain. Let Marshall 
recall Jefferson's Message to Congress on that point. 
If war did not break out, Burr's expedition was 
perfectly suitable to another and a wholly peaceful 
enterprise, and one which the President himself 
had " recommended " — namely, "strong settlements 
beyond the Mississippi." l 

1 Burr Trials, I, 5. 



374 JOHN MARSHALL 

Burr himself addressed the court, not, he said, "to 
remedy any omission of his counsel, who had done 
great justice to the subject," but "to repel some 
observations of a personal nature." Treason meant 
deeds, yet he was being persecuted on "mere con- 
jecture." The whole country had been unjustly 
aroused against him. Wilkinson had frightened the 
President, and Jefferson, in turn, had alarmed the 
people. 

Had he acted like a guilty man, he asked? Briefly 
and modestly he told of his conduct before the courts 
and grand juries in Kentucky and Mississippi, and 
the result of those investigations. The people among 
whom he journeyed saw nothing hostile or treason- 
able in his expedition. 

His "flight"? That had occurred only when he 
was denied the protection of the laws and when 
armed men, under illegal orders of an autocratic 
military authority, were seeking to seize him vio- 
lently. Then, and only then, acting upon the advice 
of friends and upon his own judgment, had he 
"abandoned a country where the laws ceased to be 
the sovereign power." Why had the guards who 
brought him from Alabama to Richmond "avoided 
every magistrate on the way"? Why had he been 
refused the use of pen, ink, and paper — denied 
even the privilege of writing to his daughter? It 
was true that when, in South Carolina, the soldiers 
chanced upon three civilians, he did indeed "de- 
mand the interposition of the civil authority." Was 
that criminal? Was it not his right to seek to be de- 
livered from "military despotism, from the tyranny 






THE CAPTURE AND ARRAIGNMENT 375 

of a military escort," and to be subjected only to 
" the operation of the laws of his country"? 1 

On "Wednesday, April 1, Marshall delivered the 
second of that series of opinions which established 
the boundaries of the American law of treason and 
rendered the trial of Aaron Burr as notable for the 
number and the importance of decisions made from 
the bench during the progress of it, as it was famous 
among legal duels in the learning, power, and elo- 
quence of counsel, in the influences brought to bear 
upon court and jury, and in the dramatic setting 
and the picturesque incidents of the proceedings. 

Marshall had carefully written his opinion. At 
the close of court on the preceding day, he had an- 
nounced that he would do this in order "to prevent 
any misrepresentations of expressions that might 
fall on him." He had also assured Hay that, in case 
he decided to commit Burr, the District Attorney 
should be heard at any length he desired on the 
question of bail. 

Thus, at the very beginning, Marshall showed 
that patience, consideration, and prudence so char- 
acteristic of him, and so indispensable to the con- 
duct of this trial, if dangerous collisions with the 
prevailing mob spirit were to be avoided. He had in 
mind, too, the haughty and peremptory conduct of 
Chase, Addison, and other judges which had given 
Jefferson his excuse for attacking the Judiciary, and 
which had all but placed that branch of the Govern- 
ment in the absolute control of that great practical 
genius of political manipulation. By the gentleness 
1 Burr Trials, i, 6-8. 



376 JOHN MARSHALL 

of his voice and manner, Marshall lessened the ex- 
cuse which Jefferson was eagerly seeking in order 
again to inflame the passions of the people against 
the Judiciary. 

Proof strong enough to convict "on a trial in 
chief," or even to convince the judge himself of 
Burr's guilt, was not, said Marshall, necessary to 
justify the court in holding him for the action of 
the grand jury; but there must be enough testimony 
"to furnish good reason to believe " that Burr had 
actually committed the crimes with which he stood 
charged. 

Marshall quoted Blackstone to the effect that a 
prisoner could be discharged only when it appeared 
that the suspicion against him was "wholly ground- 
less," but this did not mean that "the hand of ma- 
lignity may grasp any individual against whom its 
hate may be directed or whom it may capriciously 
seize, charge him with some secret crime and put 
him on the proof of his innocence." 

Precisely that "hand of malignity," however, 
Burr was feeling by orders of Jefferson. The par- 
tisans of the President instantly took alarm at 
this passage of Marshall's opinion. Here was this 
insolent Federalist Chief Justice, at the very outset 
of the investigation, presuming to reflect upon their 
idol. Such was the indignant comment that ran 
among the Republicans who packed the hall; and 
reflect upon the President, Marshall certainly did, 
and intended to do. 

The softly spoken but biting words of the Chief 
Justice were unnecessary to the decision of the 



THE CAPTURE AND ARRAIGNMENT 377 

question before him; they accurately described the 
conduct of the Administration, and they could 
have been uttered only as a rebuke to Jefferson or 
as an attempt to cool the public rage that the Pres- 
ident had aroused. Perhaps both motives inspired 
Marshall's pen when he wrote that statesmanlike 
sentence. l 

On the whole, said Marshall, probable cause to 
suspect Burr guilty of an attempt to attack the 
Spanish possessions appeared from Wilkinson's affi~ 
davit; but the charge of treason was quite another 
matter. "As this is the most atrocious offence which 
can be committed against the political body, so it is 
the charge which is most capable of being employed 
as the instrument of those malignant and vindictive 
passions which may rage in the bosoms of contend- 
ing parties struggling for power." Treason is the 
only crime specifically mentioned in the Constitu- 
tion — the definition of all others is left to Congress. 
But the Constitution itself carefully and plainly de- 
scribes treason and prescribes just how it must be 
proved. 

Did the testimony show probable grounds for be- 
lieving that Burr had committed treason? Marshall 
analyzed the affidavits of Eaton and Wilkinson, 
which constituted all of the "evidence" against 
Burr; and although the whole matter had been ex- 

1 At the noon hour "a friend" told the Chief Justice of the impres- 
sion produced, and Marshall hastened to forestall the use that he 
knew Jefferson would make of it. Calling the reporters about him, he 
"explicitly stated" that this passage in his opinion "had no allusion 
to the conduct of the government in the case before him." It was, he 
assured the representatives of the press, "only an elucidation of 
Blackstone." (Burr Trials, I, footnote to 11-) 



378 JOHN MARSHALL 

amined by the Supreme Court in the case of Boll- 
mann and Swartwout, he nevertheless went over the 
same ground again. No impatience, no hasty or 
autocratic action, no rudeness of manner, no harsh- 
ness of speech on his part should give politicians a 
weapon with which once more to strike at judges 
ind courts. 

Where, asked Marshall, was the evidence that 
Burr had assembled an army to levy war on the 
United States? Not before the court, certainly. 
Mere "suspicion" was not to be ignored when means 
of proving the suspected facts were not yet secured; 
but where the truth could easily have been estab- 
lished, if it existed, and yet no proof of it had been 
brought forward, everybody "must admit that the 
ministers of justice at least ought not officially to 
entertain" unsupported conjectures or assertions. 

"The fact to be proved . . is an act of public no- 
toriety. It must exist in the view of the world, or it 
cannot exist at all. . . Months have elapsed since the 
fact did occur, if it ever occurred. More than five 
weeks have elapsed since the . . supreme court has 
declared the necessity of proving the fact, if it exists. 
Why is it not proved?" It is, said Marshall, the 
duty of the Executive Department to prosecute 
crimes. "It would be easy" for the Government 
"to procure affidavits" that Burr had assembled 
troops five months ago. Certainly the court "ought 
not to believe that there had been any remissness" 
on the part of the Administration; and since no 
evidence had been presented that Burr had gathered 
soldiers, "the suspicion, which in the first instance 



THE CAPTURE AND ARRAIGNMENT 379 

might have been created, ought not to be continued, 
unless this want of proof can be in some manner 
accounted for." 

Marshall would, therefore, commit Burr for high 
misdemeanor, but not for treason, and must, of con- 
sequence, admit the prisoner to bail. The Chief 
Justice suggested the sum of ten thousand dollars 
as being "about right." 1 Hay protested that the 
amount was too small. Burr "is here among stran- 
gers," replied AYickham. He has fewer acquaint- 
ances in Richmond than anywhere in the country. 
To be sure, two humane men had saved the prisoner 
"from the horrors of the dungeon" when he ar- 
rived; but the first bail was only for two days, while 
the present bail was for an indefinite period. "Be- 
sides," asserted Wickham, "I have heard several 
gentlemen of great respectability, who did not doubt 
that colonel Burr would keep his recognisance, ex- 
press an unwillingness to appear as bail for him, lest 
it might be supposed they were enemies to their 
country." 2 

Thus were cleverly brought into public and offi- 
cial view the conditions under which this trial, so 
vital to American liberty, was to be held. Burr was 
a "traitor," asserted Jefferson. "Burr a traitor!" 
echoed the general voice. That all who befriended 
Burr were, therefore, also "traitors at heart," was 
the conclusion of popular logic. Who dared brave 
the wrath of that blind and merciless god, Public 
Prejudice? From the very beginning the prosecu- 
tion invoked the power of this avenging and re- 

1 Burr Trials, i, 11-18. 2 lb. 19. 



380 JOHN MARSHALL 

morseless deity, while the defense sought to break 
that despotic spell and arouse the spirit of opposi- 
tion to the tyranny of it. These facts explain the 
legal strategy of the famous controversy — a con- 
troversy that continued throughout the sweltering 
months of the summer and far into the autumn 
of 1807. 

Hay declared that he had been "well informed 
that Colonel Burr could give bail in the sum of 
one hundred thousand dollars." Gravely Burr an- 
swered that there was serious doubt whether bail in 
any sum could be procured; "gentlemen are unwill- 
ing to expose themselves to animadversions" which 
would be the result of their giving bail for him. He 
averred that he had no financial resources. "It is 
pretty well known that the government has ordered 
my property seized, and that the order has been exe- 
cuted." He had thus lost "upwards of forty thou- 
sand dollars," and his " credit had consequently 
been much impaired." 1 

Marshall, unmoved by the appeals of either side, 
fixed the bail at ten thousand dollars and adjourned 
court until three o'clock to enable Burr to procure 
sureties for that amount. At the appointed hour the 
prisoner came into court with five men of property 
who gave their bond for his appearance at the next 
term of the United States Circuit Court, to be held 
at Richmond on May 22. 

For three precious weeks at least Aaron Burr was 
free. He made the best of his time, although he 

1 Burr Trials, i, 20. His "property," however, represented bor- 
rowed money. 



THE CAPTURE AND ARRAIGNMENT 381 

could do little more than perfect the plans for his 
defense. His adored Theodosia was in alternate rage 
and despair, and Burr strove to cheer and steady her 
as best he might. Some of "your letters," he writes, 
"indicate a sort of stupor"; in others "you rise into 
phrenzy." He bids her come "back to reason. . . 
Such things happen in all democratic governments." 
Consider the "vindictive and unrelenting persecu- 
tion" of men of "virtue, . . independence and . . tal- 
ents in Greece and Rome." Let Theodosia "amuse" 
herself by collecting instances of the kind and writ- 
ing an essay on the subject "with reflections, com- 
ments and applications." The perusal of it, he says, 
will give him "great pleasure" if he gets it by the 
time court opens in May. 1 

Burr learned the names of those who were to com- 
pose the grand jury that was to investigate his mis- 
deeds. Among them were "twenty democrats and 
four federalists," he informs his daughter. One of 
"the former is W. C. Nicholas my vindictive . . 
personal enemy — the most so that could be found 
in this state. The most indefatigable industry is 
used by the agents of government, and they have 
money at command without stint. If I were pos- 
sessed of the same means, I could not only foil 
the prosecutors, but render them ridiculous and in- 
famous. The democratic papers teem with abuse of 
me and my counsel, and even against the chief jus- 
tice. Nothing is left undone or unsaid which can 
tend to prejudice the public mind, and produce a 
conviction without evidence. The machinations of 

: Burr to his daughter, May 15, 1807, Davis, n, 405-06. 



382 JOHN MARSHALL 

this description which were used against Moreau in 
France were treated in this country with indignation. 
They are practiced against me in a still more im- 
pudent degree, not only with impunity, but with 
applause; and the authors and abettors suppose, 
with reason, that they are acquiring favour with the 
administration." l 

Every word of this was true. The Republican 
press blazed with denunciation of "the traitor." 
The people, who had been led to believe that the 
destruction of their "liberties" had been the object 
at which Burr ultimately aimed, were intent on the 
death of their would-be despoiler. Republican poli- 
ticians were nervously apprehensive lest, through 
Marshall's application of the law, Burr might escape 
and the Administration and the entire Republican 
Party thereby be convicted of persecuting an inno- 
cent man. They feared, even more, the effect on 
their political fortunes of being made ridiculous. 

Giles was characteristically alert to the danger. 
Soon after Marshall had declined to commit Burr 
for treason and had released him under bail to ap- 
pear on the charge of misdemeanor only, the Repub- 
lican leader of the Senate, then in Virginia, wrote 
Jefferson of the situation. 

The preliminary hearing of Burr had, Giles stated, 
greatly excited the people of Virginia and probably 
would "have the same effect in all parts of the 
United States." He urged the President to take 
"all measures necessary for effecting . . a full and 
fair judicial investigation." The enemies of the Ad- 

1 Burr to his daughter, May 15, 1807, Davis, n, 405-06. 



THE CAPTURE AND ARRAIGNMENT 383 

ministration had gone so far as to "suggest doubts" 
as to the "measures heretofore pursued in relation 
to Burr," and had dared to "intimate that the ex- 
ecutive are not possessed of evidence to justify 
those measures " — or, if there was such evidence, 
that the prosecution had been "extremely delinquent 
in not producing it at the examination." Nay, more ! 
"It is even said that General Wilkinson will not be 
ordered to attend the trial." That would never do; 
the absence of that militant patriot "would impli- 
cate the character of the administration, more than 
they can be apprised of." l 

But Jefferson was sufficiently alarmed without 
any sounding of the tocsin by his Senatorial agent. 
"He had so frightened the country . . that to escape 
being overwhelmed by ridicule, he must get his pris- 
oner convicted of the fell designs which he had pub- 
lically attributed to him." 2 It is true that Jefferson 
did not believe Burr had committed treason ; 3 but he 
had formally declared to Congress and the country 

1 Giles to Jefferson, April 6, 1807, Anderson, 110. The date is given 
in Jefferson to Giles, April 20, 1807, Works: Ford, x, 383. 

8 Parton : Burr, 455. 

3 "Altho' at first he proposed a separation of the Western country, 
. . yet he very early saw that the fidelity of the Western country was 
not to be shaken and turned himself wholly towards Mexico and so 
popular is an enterprize on that country in this, that we had only to 
be still, & he could have had followers enough to have been in the city 
of Mexico in 6. weeks." (Jefferson to James Bowdoin, U.S. Minis- 
ter to Spain, April 2, 1807, Works: Ford, x, 381-82.) 

In this same letter Jefferson makes this amazing statement: "If we 
have kept our hands off her [Spain] till now, it has been purely out of 
respect for France. . . We expect therefore from the friendship of the 
emperor [Napoleon] that he will either compel Spain to do us justice, 
or abandon her to us. We ask but one month to be in . . the city of 
Mexico." 



384 JOHN MARSHALL 

that Burr's "guilt is placed beyond question," and, 
at any cost, he must now make good that charge. 1 

From the moment that he received the news of 
Marshall's decision to hold Burr for misdemeanor 
and to accept bail upon that charge, the prosecution 
of his former associate became Jefferson's ruling 
thought and purpose. It occupied his mind even 
more than the Nation's foreign affairs, which were 
then in the most dangerous state. 2 Champion 
though he was of equal rights for all men, yet any 
opposition to his personal or political desires or 
interests appeared to madden him. 3 A personal 
antagonism, once formed, became with Thomas 
Jefferson a public policy. 

He could see neither merit nor honesty in any act 
or word that appeared to him to favor Burr. Any- 
body who intimated doubt of his guilt did so, in 
Jefferson's opinion, for partisan or equally unworthy 
reasons. "The fact is that the Federalists make 
Burr's cause their own, and exert their whole in- 
fluence to shield him," he asserted two days after 
Marshall had admitted Burr to bail. 4 His hatred 
of the National Judiciary was rekindled if, indeed, 
its fires ever had died down. "It is unfortunate 
that federalism is still predominant in our judiciary 
department, which is consequently in opposition to 
the legislative & Executive branches & is able to 

1 McCaleb, 325. 

2 See infra, 476-77; also vol. iv, chap. I, of this work. 

3 See Nicholson to Monroe, April 12, 1807, Adams: Randolph, 216- 
18. Plumer notes "the rancor of his personal and political animosi- 
ties." (Plumer, 356.) 

4 Jefferson to James Bowdoin, U.S. Minister to Spain, April 2, 
1807, Works: Ford, x, 382. 



THE CAPTURE AND ARRAIGNMENT 385 

baffle their measures often," he averred at the same 
time, and with reference to Marshall's rulings thus 
far in the Burr case. 

He pours out his feelings with true Jeffersonian 
bitterness and passion in his answer to Giles's letter. 
No wonder, he writes, that "anxiety and doubt" 
had arisen "in the public mind in the present defec- 
tive state of the proof." This tendency had "been 
sedulously encouraged by the tricks of the judges to 
force trials before it is possible to collect the evi- 
dence dispersed through a line of two thousand miles 
from Maine to Orleans." 

The Federalists too were helping Burr! These 
miscreants were "mortified only that he did not 
separate the Union and overturn the government." 
The truth was, declares Jefferson, that the Federal- 
ists would have joined Burr in order to establish 
"their favorite monarchy" and rid themselves of 
"this hated republic," if only the traitor had had 
"a little dawn of success." Consider the inconsistent 
attitude of these Federalists. Their first "complaint 
was the supine inattention of the administration to a 
treason stalking through the land in the open light 
of day; the present one, that they [the Administra- 
tion] have crushed it before it was ripe for execution, 
so that no overt acts can be proved." 

Jefferson confides to Giles that the Government 
may not be able to establish the commission of 
overt acts; in fact, he says, "we do not know of a 
certainty yet what will be proved." But the Admin- 
istration is already doing its very best: "We have 
set on foot an inquiry through the whole of the 



386 JOHN MARSHALL 

country which has been the scene of these transac- 
tions to be able to prove to the courts, if they will 
give time, or to the public by way of communication 
to Congress, what the real facts have been" — 
this three months after Jefferson had asserted, in 
his Special Message on the conspiracy, that Burr's 
"guilt is placed beyond question." 

In this universal quest for "the facts," the Gov- 
ernment had no help from the National courts, com- 
plains the President: "Aided by no process or facili- 
ties from Federal Courts, 1 but frowned on by their 
new-born zeal for the liberty of those whom we 
would not permit to overthrow the liberties of their 
country, we can expect no revealments from the 
accomplices of the chief offender." But witnesses 
would be produced who would "satisfy the world if 
not the judges" of Burr's treason. Jefferson enu- 
merates the "overt acts" which the Administration 
expected to prove. 2 

Marshall, of course, stood in the way, for it was 

1 This was flatly untrue. No process to obtain evidence or to aid 
the prosecution in any way was ever denied the Administration. 
This statement of the President was, however, a well-merited re- 
flection on the tyrannical conduct of the National judges in the trials 
of men for offenses under the Sedition Law and even under the com- 
mon law. (See supra, chap, i.) But, on the one hand, Marshall had 
not then been appointed to the bench and was himself against the 
Sedition Law (see vol. n, chap, xi, of this work) ; and, on the other 
hand, Jefferson had now become as ruthless a prosecutor as Chase or 
Addison ever was. 

2 These were: "1. The enlistment of men in a regular way; 2, the 
regular mounting of guard round Blennerhassett's island; . . 3. the 
rendezvous of Burr with his men at the mouth of the Cumberland; 
4. his letter to the acting Governor of Mississippi, holding up the 
prospect of civil war; 5. his capitulation, regularly signed, with the 
aides of the Governor, as between two independent and hostile com- 
manders." 



THE CAPTURE AND ARRAIGNMENT 387 

plain that "the evidence cannot be collected under 
4 months, probably 5." Jefferson had directed his 
Attorney-General, "unofficially," but "expressly," 
to "inform the Chief Justice of this." With what 
result? "Mr. Marshall says, 'more than 5 weeks 
have elapsed since the opinion of the Supreme Court 
has declared the necessity of proving the overt 
acts if they exist. Why are they not proved?' In 
what terms of decency," growls Jefferson, "can we 
speak of this? As if an express could go to Natchez 
or the mouth of the Cumberland and return in 5 
weeks, to do which has never taken less than 
twelve." 

Jefferson cannot sufficiently criticize Marshall's 
opinion: "If, in Nov. or Dec. last, a body of troops 
had assembled on the Ohio, it is impossible to sup- 
pose the affidavits establishing the fact could not 
have been obtained by the last of March," he quotes 
from Marshall's ruling. "I ask the judge where 
they [the affidavits] should have been lodged? At 
Frankfort? at Cincinnati? at Nashville? St. Louis? 
. . New Orleans? . . W T here? At Richmond he cer- 
tainly meant, or meant only to throw dust in the 
eyes of his audience." x 

As his pen flew over the burning page, Jefferson's 

1 The affidavits in regard to what happened on Blennerhassett's 
island would necessarily be lodged in Richmond, since the island was 
in Virginia and the United States Court for the District of that State 
alone had jurisdiction to try anybody for a crime committed within its 
borders. 

Even had there been any doubt as to where the trial would take 
place, the Attorney-General would have held the affidavits pending 
the settlement of that point; and when the place of trial was deter- 
mined upon, promptly dispatched the documents to the proper dis- 
trict attorney. 



388 JOHN MARSHALL 

anger grew. Marshall's love of monarchy was at the 
bottom of his decision: "All the principles of law 
are to be perverted which would bear on the favor- 
ite offenders who endeavor to overrun this odious 
Republic." 

Marshall's refinements as to proof required to es- 
tablish probable cause to believe Burr guilty, par- 
ticularly irritated Jefferson. "As to the overt acts, 
were not the bundle of letters of information in Mr. 
Rodney's hands, the letters and facts published in 
the local newspapers, Burr's flight, & the universal be- 
lief or rumor of his guilt, probable ground for pre- 
suming the facts . . so as to put him on trial? Is 
there a candid man in the U S who does not believe 
some one, if not all, of these overt acts to have 
taken place?" 

How dare Marshall require legal evidence when 
"letters, newspapers and rumors" condemned Burr! 
How dare he, as a judge, not heed "the universal 
belief," especially when that general public opinion 
had been crystallized by Jefferson himself! 

That Marshall was influenced by politics and was 
of a kidney with the whole breed of National judges 
up to that time, Jefferson had not the slightest 
doubt. "If there ever had been an instance in this 
or the preceding administrations, of federal judges 
so applying principles of law as to condemn a federal 
or acquit a republican offender, I should have judged 
them in the present case with more charity." 

But the conduct of the Chief Justice will be the 
final outrage which will compel a great reform. 
"The nation will judge both the offender & judges 



THE CAPTURE AND ARRAIGNMENT 389 

for themselves . . the people . . will see . . & amend 
the error in our Constitution, which makes any 
branch independent of the nation. . . One of the 
great co-ordinate branches of the government, set- 
ting itself in opposition to the other two, and to the 
common sense of the nation, proclaims impunity to 
that class of offenders which endeavors to overturn 
the Constitution, and are themselves protected in 
it by the Constitution itself; for impeachment is 
a farce which will not be tried again." 

Thus Jefferson extracts some comfort from Mar- 
shall's refusal to obey popular clamor and condemn 
on "rumor." If Marshall's "protection of Burr pro- 
duces this amendment, 1 it will do more good than 
his condemnation would have done. Against Burr, 
personally," audaciously adds Jefferson, "I never 
had one hostile sentiment." 2 

Such was the state of the President's mind when 
he learned of Marshall's ruling on the Government's 
motion to commit Burr to jail upon the charges of 
treason and high misdemeanor. Jefferson felt that 
he himself was on trial; he knew that he must make 
good his charges or suffer a decline in the popularity 
which he prized above all else in life. He proposed 
that, at the very least, the public should be on 
his side, and he resolved to exert the utmost efforts 
of the National Government to bend Marshall to 
his will. 

1 The reference is to the amendment to the Constitution urged by 
Jefferson, and offered by Randolph in the House, providing that a 
judge should be removed by the President on the address of both 
Houses of Congress. (See supra, chap, iv, 221.) 

2 Jefferson to Giles, April 20, 1807, Works: Ford, x, 383-88. 



390 JOHN MARSHALL 

Thus the President of the United States became 
the leading counsei in the prosecution of Aaron 
Burr, as well as the director-general of a propaganda 
planned to confirm public opinion of Burr's treason, 
and to discredit Marshall should his decisions from 
the bench result in the prisoner's escape from the 
gallows. 1 Jefferson ordered his Attorney-General, 
Csesar A. Rodney, to direct justices of the peace 
throughout the country to examine everybody sup- 
posed to have any knowledge of Burr, his plans, 
movements, or conversations. Long lists of ques- 
tions, designed to elicit replies that would convict 
Burr, were sent to these officials on printed forms. 
A vast drag-net was spread over almost the whole 
of the United States and drawn swiftly and re- 
morselessly to Washington. 

The programme for the prosecution became the 
subject of anxious Cabinet meetings, and the re- 
sources of every department of the Executive branch 
of the Government were employed to overwhelm the 
accused man. Jefferson directed Madison as Sec- 
retary of State "to take the necessary measures," 
including the advance of money for their expenses, 
to bring to Richmond witnesses "from great dis- 
tances." 

Five thousand dollars, in a single warrant, was 
given to the Attorney-General for use in supporting 

1 See Parton: Burr, 456-57. "The real prosecutor of Aaron Burr, 
throughout this business, was Thomas Jefferson, President of the 
United States, who was made President of the United States by Aaron 
Burr's tact and vigilance, and who was able therefore to wield against 
Aaron Burr the power and resources of the United States." (lb. 
457.) And see McCaleb, 361. 



THE CAPTURE AND ARRAIGNMENT 391 

the Administration's case. 1 The total amount of the 
public money expended by Jefferson's orders to se- 
cure Burr's conviction was $11,721.11, not a dollar 
of which had been appropriated for that purpose. 
"All lawful expenses in the prosecution of Burr were 
audited, and paid in full," under a law which pro- 
vided for the conduct of criminal cases; the sums 
spent by direction of the President were in addi- 
tion to the money dispensed by authority of that 
law. 2 

When Bollmann had been brought to Washington, 
he had read with rage and amazement the newspaper 
accounts that Burr had led two thousand armed 
men in a violent and treasonable attack upon the 
United States. Accordingly, after Marshall released 
him from imprisonment, he hastened to Jefferson 
and tried to correct what he declared to be "false 
impressions" concerning Burr's treason. Bollmann 
also wished to convince the President that war with 
Spain was desirable, and to get his support of Burr's 
expedition. Jefferson, having taken the precaution 
to have the Secretary of State present at the inter- 
view, listened with apparent sympathy. The fol- 
lowing day he requested Bollmann to write out and 
deliver to him his verbal statements, "Thomas 
Jefferson giving him his word of honour that they 
should never be used against himself [Bollmann] 
and that the paper shall never go out of his [Jeffer- 
son's] hand." 3 

1 Jefferson to the Secretary of State, April 14, 1807, Works: Ford, 
x, 383. 

2 Jenkinson: Aaron Burr, 282-83. 

3 Jefferson to "Bollman," Jan. 25, 1807, Davis, n, 388. 



392 JOHN MARSHALL 

The confiding Bollmann did as the President re- 
quested, his whole paper going "to disprove treason, 
and to show the expediency of war." Because of un- 
familiarity with the English language "one or two 
expressions" may have been "improperly used." 1 
Bollmann's statement Jefferson now transmitted to 
the District Attorney at Richmond, in order, said 
the President, "that you may know how to examine 
him and draw everything from him." 

Jefferson ordered Hay to show the paper only to 
his associate counsel; but, if Bollmann "should pre- 
varicate," the President adds, "ask him whether he 
did not say so and so to Mr. Madison and myself." 
The President assures Hay that "in order to let 
him [Bollmann] see that his prevarication will be 
marked, Mr. Madison will forward [Hay] a pardon 
for him, which we mean should be delivered pre- 
viously." Jefferson fears that Bollmann may not 
appear as a witness and directs Hay to "take effec- 
tual measures to have him immediately taken into 
custody." 

Nor was this all. Three months earlier, Wilkin- 
son had suggested to Jefferson the base expedient 
of offering pardons to Burr's associates, in order to 
induce them to betray him and thus make certain 
his conviction. 2 Apparently this crafty and sinister 
advice now recurred to Jefferson's mind — at least 
he followed it. He enclosed a sheaf of pardons and 
directed Hay to fill them out "at [his] discretion, if 
[he] should find a defect of evidence, & believe that 
this would supply it, by avoiding to give them to 

1 Bollmann's narrative, Davis, n, 389. 2 McCaleb, 331. 



THE CAPTURE AND ARRAIGNMENT 393 

the gross offenders, unless it be visible that the prin- 
cipal will otherwise escape." x 

In the same letter Jefferson also sent to Hay the 
affidavit of one Jacob Dunbaugh, containing a mass 
of bizarre falsehoods, as was made plain during 
the trial. Dunbaugh was a sergeant who had been 
arrested for desertion and had been pardoned by 
AYilkinson on condition that he would give suitable 
testimony against Burr. "If," continues Jefferson, 
"General Wilkinson gets on in time, 2 I expect he 
will bring Dunbaugh with him. At any rate it 
[Dunbaugh's affidavit] may be a ground for an arrest 
& committment for treason." 

Vividly alive to the forces at work to doom him, 
Burr nevertheless was not dismayed. As a part of 
his preparation for defense he exercised on all whom 
he met the full power of his wonderful charm; and 
if ever a human being needed friends, Aaron Burr 
needed them in the Virginia Capital. As usual, most 
of those who conversed with him and looked into his 
deep, calm eyes became his partisans. Gradually, 
a circle of men and women of the leading families 
of Richmond gathered about him, supporting and 
comforting him throughout his desperate ordeal. 

Burr's attorneys were no longer merely his 
counsel performing their professional duty; even 
before the preliminary hearing was over, they had 

1 Jefferson to the United States District Attorney for Virginia, May 
20, 1807, Works: Ford, x, 394-401. 

Bollmann, in open court, scornfully declined to accept the pardon. 
(See infra, 452.) 

2 Wilkinson was then en route by sea to testify against Burr before 
the grand jury. 



394 JOHN MARSHALL 

become his personal friends and ardent champions. 
They were ready and eager to go into court and 
fight for their client with that aggressiveness and 
enthusiasm which comes only from affection for a 
man and a faith in his cause. Every one of them 
not only had developed a great fondness for Burr, 
but earnestly believed that his enterprise was praise- 
worthy rather than treasonable. 

One of them, John Wickham, was a commanding 
figure in the society of Richmond, as well as the 
leader of the Virginia bar at that time. 1 He was a 
close friend of Marshall and lived in an imposing 
house near him. It was to Wickham that Marshall 
had left the conduct of his cases in court when he 
went to France on the X. Y. Z. mission. 

Dinners were then the principal form of social 
intercourse in Richmond, and were constantly given, 
The more prominent lawyers were particularly de- 
voted to this pleasing method of cheer and relax- 
ation. This custom kept the brilliant bar of Rich- 
mond sweet and wholesome, and nourished among 
its members a mutual regard, while discouraging re- 
sentments and animosities. Much of that courtesy 
and deference shown to one another by the lawyers 
of that city, even in the most spirited encounters in 
court, was due to that esteem and fellowship which 
their practice of dining together created. 

Of the dispensers of such hospitality, Marshall 
and Wickham were the most notable and popular. 
The "lawyer dinners" given by Marshall were 
famous; and the tradition of them still casts a 

1 Mordecai : Richmond in By-Gone Days, 68. 



THE CAPTURE AND ARRAIGNMENT 395 

warm and exhilarating glow. The dinners, too, of 
John Wickham were quite as alluring. The food was 
as plentiful and as well prepared, the wines as varied, 
select, and of as ancient vintage, the brandy as old 
and "sound," the juleps as fragrant and seductive; 
and the wit was as sparkling, the table talk as in- 
forming, the good humor as heartening. Nobody 
ever thought of declining an invitation to the house 
of John Wickham. 

All these circumstances combined to create a situ- 
ation for which Marshall was promptly denounced 
with that thoughtlessness and passion so character- 
istic of partisanship — a situation that has furnished 
a handle for malignant criticism of him to this day. 
During the interval between the preliminary hear- 
ing and the convening of court in May, Wickham 
gave one of his frequent and much-desired dinners. 
As a matter of course, Wickham's intimate friend 
and next-door neighbor was present — no dinner in 
Richmond ever was complete without the gentle- 
mannered, laughter-loving John Marshall, with his 
gift for making everybody happy and at ease. But 
Aaron Burr was also a guest. 

Aaron Burr, "the traitor," held to make answer 
to charges for his infamous crimes, and John Mar- 
shall, the judge before whom the miscreant was to be 
tried, dining together! And at the house of Burr's 
chief counsel! Here was an event more valuable 
to the prosecution than any evidence or argument, 
in the effect it would have, if rightly employed, on 
public opinion, before which Burr had been and was 
arraigned far more than before the court of justice. 



396 JOHN MARSHALL 

Full use was made of the incident. The Republi- 
can organ, the Richmond Enquirer, promptly ex- 
posed and denounced it. This was done by means of 
two letters signed "A Stranger from the Country," 
who "never had any, the least confidence in the 
political principles of the chief justice" — none in 
"that noble candor" and "those splendid . . even 
god-like talents which many of all parties ascribe to 
him." Base as in reality he was, Marshall might have 
"spared his country" the "wanton insult" of having 
"feasted at the same convivial board with Aaron 
Burr." What excuse was there for "conduct so 
grossly indecent"? To what motive should Mar- 
shall's action be ascribed? "Is this charity, hypo- 
cracy, or federalism? " Doubtless he " was not actu- 
ated by any corrupt motive," and "was unapprised 
of the invitation of B." * However, the fact is, that 
the judge, the accused, and his attorney, were fellow 
guests at this "treason rejoicing dinner." 2 

1 According to a story, told more than a century after the incident 
occurred, Marshall did not know, when he accepted Wickham's in- 
vitation, that Burr was to be a guest, but heard of that fact before 
the dinner. His wife, thereupon, advised him not to go, but, out of 
regard for Wickham, he attended. (Thayer: John Marshall, 80-81.) 

This tale is almost certainly a myth. Professor Thayer, to whom it 
was told by an unnamed descendant of Marshall, indicates plainly 
that he had little faith in it. 

The facts that, at the time, even the Enquirer acquitted Marshall 
of any knowledge that Burr was to be present; that the prudence 
of the Chief Justice was admitted by his bitterest enemies; that so 
gross an indiscretion would have been obvious to the most reckless; 
that Marshall, of all men, would not have embarrassed himself in 
such fashion, particularly at a time when public suspicion was so 
keen and excitement so intense — render it most improbable that he 
knew that Burr was to be at the Wickham dinner. 

2 Enquirer, April 10 and 28, 1807. 



THE CAPTURE AND ARRAIGNMENT 397 

Thus the great opinions of John Marshall, deliv- 
ered during the trial of Aaron Burr, were condemned 
before they were rendered or even formed. With 
that lack of consideration which even democracies 
sometimes display, the facts were not taken into 
account. That Marshall never knew, until he was 
among them, who his fellow guests were to be; that 
Wickham's dinner, except in the presence of Burr, 
differed in no respect from those constantly given in 
Richmond; that Marshall, having arrived, could do 
nothing except to leave and thus make the situa- 
tion worse; — none of these simple and obvious facts 
seemed to have occurred to the eager critics of the 
Chief Justice. 

That Marshall was keenly aware of his predica- 
ment there can be no doubt. He was too good a 
politician and understood too well public whimsies 
and the devices by which they are manipulated, not 
to see the consequences of the innocent but unfortu- 
nate evening at Wickham's house. But he did not 
explain; he uttered not a syllable of apology. W T ith 
good-natured contempt for the maneuvers of the 
politicians and the rage of the public, yet carefully 
and coolly weighing every element of the situation, 
John Marshall, when the appointed day of May 
came around, was ready to take his seat upon the 
bench and to conduct the historic trial of Aaron 
Burr with that kindly forbearance which never de- 
serted him, that canny understanding of men and 
motives which served him better than learning, 
and that placid fortitude that could not be shaken. 



CHAPTER VHI 

ADMINISTRATION VERSUS COURT 

In substance Jefferson said that if Marshall should suffer Burr to escape, 
Marshall himself should be removed from office. (Henry Adams.) 

It becomes our duty to lay the evidence before the public. Go into any expense 
necessary for this purpose. (Jefferson.) 

The President has let slip the dogs of war, the hell-hounds of persecution, to 
hunt down my friend. (Luther Martin.) 

If you cannot exorcise the demon of prejudice, you can chain him down to 
law and reason. (Edmund Randolph.) 

On May 22, 1807, the hall of the House of Delegates 
at Richmond was densely crowded long before the 
hour of half -past twelve, when John Marshall took 
his seat upon the bench and opened court. So occu- 
pied was every foot of space that it was with diffi- 
culty that a passage was opened through which the 
tall, awkwardly moving, and negligently clad Chief 
Justice could make his way. By Marshall's side sat 
Cyrus Griffin, Judge of the District Court, who 
throughout the proceedings was negligible. 

The closely packed spectators accurately por- 
trayed the dress, manners, and trend of thought of 
the American people of that period. Gentlemen in 
elegant attire — hair powdered and queues tied in 
silk, knee breeches and silver buckles, long rich cloth 
coats cut half away at the waist, ruffled shirts and 
high stocks — were conspicuous against the back- 
ground of the majority of the auditors, whose 
apparel, however, was no less picturesque. 

This audience was largely made up of men from 
the smaller plantations, men from the mountains, 



ADMINISTRATION VERSUS COURT 399 

men from the backwoods, men from the frontiers. 
Red woolen shirts; rough homespun or corduroy- 
trousers, held up by "galluses"; fringed deerskin 
coats and "leggings" of the same material kept in 
place by leather belts; hair sometimes tied by strings 
in uncouth queues, but more often hanging long and 
unconfined — in such garb appeared the greater 
part of the attendance at the trial of Aaron Burr. 
In forty years there had been but little change in 
the general appearance of Virginians * except that 
fewer wore the old dignified and becoming attire of 
well-dressed men. 

Nearly all of them were Republicans, plain men, 
devoted to Jefferson as the exponent of democracy 
and the heaven-sent leader of the people. Among 
these Jeffersonians, however, were several who, quite 
as much as the stiffest Federalists, prided themselves 
upon membership in the "upper classes." 

Nearly all of the Republicans present, whether of 
the commonalty or the gentry, were against Aaron 
Burr. Scattered here and there were a few Federal- 
ists — men who were convinced that democracy 
meant the ruin of the Republic, and who profoundly 
believed that Jefferson was nothing more than an 
intriguing, malicious demagogue — most of whom 
looked upon Burr with an indulgent eye. So did 
an occasional Republican, as now and then a lone 
Federalist denounced Burr's villainy. 

The good-sized square boxes filled with sand that 
were placed at infrequent intervals upon the floor 
of the improvised court-room were too few to receive 

1 See vol. I, 201, of this work. 



400 JOHN MARSHALL 

the tobacco juice that filled the mouths of most of 
the spectators before it was squirted freely upon the 
floor and wall. Those who did not chew the weed 
either smoked big cigars and fat pipes or contented 
themselves with taking snuff. 1 Upon recess or ad- 
journment of court, all, regularly and without loss of 
time, repaired to the nearest saloons or taverns and 
strengthened themselves, with generous draughts of 
whiskey or brandy, taken "straight," for a firmer, 
clearer grasp of the points made by counsel. 

Never, in its history, had Richmond been so 
crowded with strangers. Nearly five thousand 
people now dwelt in the Virginia Capital, the site of 
which was still "untamed and broken" by "inac- 
cessible heights and deep ravines." 2 Thousands of 
visitors had come from all over the country to wit- 
ness the prosecution of that fallen angel whose dark 
deeds, they had been made to believe, had been in 
a fair way to destroy the Nation. The inns could 
shelter but an insignificant fraction of them, and few 
were the private houses that did not take in men 
whom the taverns could not accommodate. Hundreds 
brought covered wagons or tents and camped under 
the trees or on the river-banks near the city. Corre- 
spondents of the press of the larger cities were present, 
among them the youthful 3 Washington Irving, who 
wrote one or two articles for a New York paper. 

1 Tobacco chewing and smoking in court-rooms continued in most 
American communities in the South and West down to a very recent 
period. 

2 Address of John Tyler on "Richmond and its Memories," Tyler, 
I, 219. 

3 Irving was twenty -four years old when he reported the Burr trial. 



ADMINISTRATION VERSUS COURT 401 

In the concourse thus drawn to Richmond, few 
there were who were not certain that Burr had 
planned and attempted to assassinate Jefferson, 
overthrow the Government, shatter the Nation, and 
destroy American "liberty"; and so vocal and bel- 
ligerent was this patriotic majority that men who at 
first held opinions contrary to the prevailing senti- 
ment, or who entertained doubts of Burr's guilt, 
kept discreetly silent. So aggressively hostile was 
public feeling that, weeks later, when the bearing 
and manners of Burr, and the devotion, skill, and 
boldness of his counsel had softened popular asper- 
ity, Marshall declared that, even then, "it would be 
difficult or dangerous for a jury to venture to acquit 
Burr, however innocent they might think him." x 
The prosecution of Aaron Burr occurred when a 
tempest of popular prejudice and intolerance was 
blowing its hardest. 

The provision concerning treason had been writ- 
ten into the American Constitution "to protect the 
people against that horrible and dangerous doctrine 
of constructive treason which had stained the Eng- 
lish records with blood and filled the English val- 
leys with innocent graves." 2 

The punishment for treason in all countries had 
been brutal and savage in the extreme. In Eng- 

1 Blenner has sett Papers: Safford, 465. Marshall made this avowal 
to Luther Martin, who personally told Blennerhassett of it. 

2 Judge Francis M. Finch, in Dillon, i, 402. 

" The men who framed that instrument [Constitution] remembered 
the crimes that had been perpetrated under the pretence of justice; 
for the most part they had been traitors themselves, and having risked 
their necks under the law they feared despotism and arbitrary power 
more than they feared treason." (Adams: U.S. Hi, 468.) 



402 JOHN MARSHALL 

land, that crime had not perhaps been treated with 
such severity as elsewhere. Yet, even in England, 
so harsh had been the rulings of the courts against 
those charged with treason, so inhuman the execu- 
tion of judgments upon persons found guilty under 
these rulings, so slight the pretexts that sent in- 
nocent men and women to their death, 1 that the 
framers of our fundamental law had been careful 
to define treason with utmost clearness, and to de- 
clare that proof of it could only be made by two 
witnesses to the same overt act or by confession of 
the accused in open court. 2 

That was one subject upon which the quarreling 
members of the Constitutional Convention of 1787 
had been in accord, and their solution of the ques- 
tion had been the one and the only provision of 
which no complaint had been made during the strug- 
gle over ratification. 

Every member of that Convention — every officer 
and soldier of the Revolution from Washington down 
to private, every man or woman who had given 

1 A favorite order from the bench for the execution of the con- 
demned was that the culprit should be drawn prostrate at the tails of 
horses through the jagged and filthy streets from the court-room to 
the place of execution; the legs, arms, nose, and ears there cut off; the 
intestines ripped out and burned "before the eyes" of the victim; 
and finally the head cut off. Details still more shocking were fre- 
quently added. See sentences upon William, Lord Russell, July 14, 
1683 (State Trials Richard II to George I, vol. 3, 660) ; upon Algernon 
Sidney, November 26, 1683 (ib. 738) ; upon William, Viscount Stafford, 
December 7, 1680 (ib. 214); upon William Stayley, November 21, 
1678 (ib. vol. 2, 656) ; and upon other men condemned for treason. 

2 Even in Philadelphia, after the British evacuation of that place 
during the Revolution, hundreds were tried for treason. Lewis alone, 
although then a very young lawyer, defended one hundred and fifty- 
two persons. (See Chase Trial, 21.) 



ADMINISTRATION VERSUS COURT 403 

succor or supplies to a member of the patriot army, 
everybody who had advocated American independ- 
ence — all such persons could have been prose- 
cuted and might have been convicted as "traitors" 
under the British law of constructive treason. 1 
"None," said Justice James Iredell in 1792, "can 
so highly . . prize these provisions [of the Constitu- 
tion] as those who are best acquainted with the 
abuses which have been practised in other countries 
in prosecutions for this offence. . . We . . hope that 
the page of American history will never be stained 
with prosecutions for treason, begun without cause, 
conducted without decency, and ending in iniqui- 
tous convictions, without the slightest feelings of 
remorse." 2 

Yet, six years later, Iredell avowed his belief in the 
doctrine of constructive treason. 3 And in less than 
seventeen years from the time our National Gov- 
ernment was established, the reasons for writing 
into the Constitution the rigid provision concerning 
treason were forgotten by the now thoroughly parti- 
sanized multitude, if, indeed, the people ever knew 
those reasons. 

Moreover, every National judge who had passed 
upon the subject, with the exception of John Mar- 

1 "In the English law . . the rule . . had been that enough heads 
must be cut off to glut the vengeance of the Crown." (Isaac N. Phil- 
lips, in Dillon, n, 394.) 

2 Iredell's charge to the Georgia Grand Jury, April 26, 1792, 
Iredell: Mcltee, ii, 349; and see Iredell's charge to the Massachu- 
setts Grand Jury, Oct. 12, 1792, ib. 365. 

3 See his concurrence with Judge Peters's charge in the Fries case, 
Wharton: State Trials, 587-91; and Peters's opinion, ib. 586; also see 
Chase's charge at the second trial of Fries, ib. 636. 



404 JOHN MARSHALL 

shall, had asserted the British doctrine of construc- 
tive treason. Most of the small number who realized 
the cause and real meaning of the American Consti- 
tutional provision as to treason were overawed by 
the public frenzy; and brave indeed was he who 
defied the popular passion of the hour or questioned 
the opinion of Thomas Jefferson, then at the summit 
of his popularity. 1 

One such dauntless man, however, there was 
among the surging throng that filled the Capitol 
Square at Richmond after the adjournment of court 
on May 22, and he was a vigorous Republican, too. 
"A tall, lank, uncouth-looking personage, with long 
locks of hair hanging over his face, and a queue 
down his back tied in an eel-skin, his dress singular, 
his manners and deportment that of a rough back- 
woodsman," 2 mounted the steps of a corner gro- 
cery and harangued the glowering assemblage that 
gathered in front of him. 3 His daring, and an un- 
mistakable air that advertised danger to any who 
disputed him, prevented that violent interruption 
certain to have been visited upon one less bold and 
formidable. He praised Burr as a brave man and a 
patriot who would have led Americans against the 
hated Spanish; he denounced Jefferson as a perse- 
cutor who sought the ruin of one he hated. Thus 
Andrew Jackson of Tennessee braved and cowed 
the hostile mob that was demanding and impatiently 
awaiting the condemnation and execution of the 

1 "The President's popularity is unbounded, and his will is that of 
the nation. . . Such is our present infatuation." (Nicholson to Ran- 
dolph, April 12, 1807, Adams: Randolph, 216-17.) 

2 Hildreth, iv, 692. 3 Parton: Burr, 458. 



ADMINISTRATION VERSUS COURT 405 

one who, for the moment, had been made the ob- 
ject of the country's execration. 1 

Jackson had recovered from his brief distrust of 
Burr, and the reaction had carried his tempestuous 
nature into extreme championship of his friend. 
"I am more convinced than ever," he wrote during 
the trial, "that treason was never intended by 
Burr." 2 Throughout the extended and acrimonious 
contest, Jackson's conviction grew stronger that Burr 
was a wronged man, hounded by betrayers, and the 
victim of a political conspiracy to take his life and 
destroy his reputation. And Jackson firmly believed 
that the leader of this cabal was Thomas Jefferson. 
"I am sorry to say," he wrote, "that this thing [the 
Burr trial] has . . assumed the shape of a political 
persecution." 3 

The Administration retaliated by branding An- 
drew Jackson a "malcontent"; and Madison, be- 
cause of Jackson's attitude, prevented as long as 
possible the military advancement of the refractory 
Tennesseean during the War of 1812. 4 On the other 
hand, Burr never ceased to be grateful to his fron- 
tiersman adherent, and years later was one of those 
who set in motion the forces which made Andrew 
Jackson President of the United States. 6 

Nor was Jackson the only Republican who con- 
sidered Jefferson as the contriving and energizing 
hand of the scheme to convict Burr. Almost riotous 

1 Parton: Jackson, i, 333. 

2 Jackson to Anderson, June 16, 1807, ib. 334. 
a Ib. 335. 4 Ib. 334-36. 

5 Parton: Burr, 606-08; see also Parton: Jackson, n, 258-59, 351- 
54; and Davis, n, 433-36. 



406 JOHN MARSHALL 

were the efforts to get into the hall where the trial 
was held, though it was situated on a steep hill and 
"the ascent to the building was painfully laborious." l 
Old and eminent lawyers of Richmond could not 
reach the bar of the court, so dense was the throng. 

One youthful attorney, tall and powerful, "the 
most magnificent youth in Virginia," determined to 
witness the proceedings, shouldered his way within 
and "stood on the massive lock of the great door" 
of the chamber. 2 Thus Winfield Scott got his first 
view of that striking scene, and beheld the man 
whose plans to invade Mexico he himself, more 
than a generation afterward, was to carry out as 
Commander of the American Army. Scott, there 
and then, arrived at conclusions which a lifetime of 
thought and experiences confirmed. "It was Presi- 
dent Jefferson who directed and animated the prose- 
cution," he declares in his "Memoirs." Scott records 
the political alignment that resulted : "Hence every 
Republican clamored for execution. Of course, the 
Federalists . . compacted themselves on the other 
side." 3 

Of all within the Hall of Delegates, and, indeed, 
among the thousands then in Richmond, only two 
persons appeared to be perfectly at ease. One of 
them was John Marshall, the other was Aaron Burr. 
Winfield Scott tells us of the manner of the imper- 
iled man as he appeared in court on that sultry mid- 
day of May: "There he stood, in the hands of power, 
on the brink of danger, as composed, as immovable, 

1 Address of John Tyler, "Richmond and its Memories," Tyler, i, 219. 

2 Parton: Burr, 459. 3 Memoirs of Lieut. -General Scott, i, 13. 



ADMINISTRATION VERSUS COURT 407 

as one of Canova's living marbles." But, says Scott, 
"Marshall was the master spirit of the scene." l 

Gathered about Burr were four of his counsel, the 
fifth and most powerful of his defenders, Luther 
Martin, not yet having arrived. The now elderly 
Edmund Randolph, bearing himself with "over- 
awing dignity"; John Wickham, whose commanding 
presence corresponded well with his distinguished 
talents and extensive learning; Benjamin Botts, a 
very young lawyer, but of conceded ability and 
noted for a courage, physical and moral, that noth- 
ing could shake; and another young attorney, John 
Baker, a cripple, as well known for his wit as Botts 
for his fearlessness — this was the group of men that 
appeared for the defense. 

For the prosecution came Jefferson's United States 
District Attorney, George Hay — eager, nervous, 
and not supremely equipped either in mind or 
attainments; William Wirt — as handsome and at- 
tractive as he was eloquent and accomplished, his 
extreme dissipation 2 now abandoned, and who, by 
his brilliant gifts of intellect and character, was be- 
ginning to lay the solid foundations of his notable 
career; and Alexander MacRae, then Lieutenant- 
Governor of Virginia — a sour-tempered, aggressive, 
well-informed, and alert old Scotchman, pitiless in 
his use of sarcasm, caring not the least whom he 

1 Memoirs of Lieut-General Scott, I, 13, 16. 

2 See Great American Lawyers: Lewis, n, 268-75. 

Kennedy says that the stories of Wirt's habits of intoxication were 
of ten exaggerated (Kennedy, I, 68); but see his description of the 
bar of that period and his apologetic reference to Wirt's conviviality 
(ib. 66-67). 



408 JOHN MARSHALL 

offended if he thought that his affronts might help 
the cause for which he fought. David Robertson, 
the stenographer who reported the trial, was a 
scholar speaking five or six languages. 1 

With all these men Marshall was intimately ac- 
quainted, and he was well assured that, in making 
up his mind in any question which arose, he would 
have that assistance upon which he so much relied 
— exhaustive argument and complete exposition of 
all the learning on the subject to be decided. 

Marshall was liked and admired by the lawyers 
on both sides, except George Hay, who took Jeffer- 
son's view of the Chief Justice. Indeed, the ardent 
young Republican District Attorney passionately 
espoused any opinion the President expressed. The 
whole bar understood the strength and limitations 
of the Chief Justice, the power of his intellect no 
less than his unfamiliarity with precedents and the 
learning of the law. From these circumstances, and 
from Marshall's political wisdom in giving the law- 
yers a free hand, resulted a series of forensic en- 
counters seldom witnessed or even tolerated in a 
court of justice. 

The first step in the proceedings was the exami- 
nation by the grand jury of the Government's wit- 
nesses, and its return, or refusal to return, bills of 
indictment against Burr. When the clerk had called 
the names of those summoned on the grand jury, 
Burr arose and addressed the court. Clad in black 
silk, hair powdered and queue tied in perfect fashion, 
the extreme pallor of his face in striking contrast to 

1 Blenner has sett Papers: Safford, 426. 



ADMINISTRATION VERSUS COURT 409 

his large black eyes, he made a rare picture of ele- 
gance and distinction in the uncouth surroundings 
of that democratic assemblage. 

The accused man spoke with a quiet dignity and 
an "impressive distinctness" which, throughout the 
trial, so wrought upon the minds of the auditors that, 
fifty years afterward, some of those who heard him 
could repeat sentences spoken by him. 1 Burr now 
objected to the panel of the grand jury. The law, 
he said, required the marshal to summon twenty- 
four freeholders; if any of these had been struck off 
and others summoned, the act was illegal, and he 
demanded to know whether this had been done. 2 

For an hour or more the opposing counsel wran- 
gled over this point. Randolph hints at the strategy 
of the defense: "There never was such a torrent of 
prejudice excited against any man, before a court 
of justice, as against colonel Burr, and by means 
which we shall presently unfold." Marshall sus- 
tained Burr's exception: undoubtedly the marshal 
had acted "with the most scrupulous regard to 
what he believed to be the law," but, if he had 
changed the original panel, he had transcended his 
authority. 3 It was then developed that the panel 
had been changed, and the persons thus illegally 
placed on the grand jury were dismissed. 4 

"With regret," Burr demanded the right to chal- 
lenge the remainder of the grand jury "for favour." 6 
Hay conceded the point, and Burr challenged Sena- 

1 Parton -.Burr, 461. 2 Burr Trials, i, 31-32. 3 76.37. 4 Z6.38. 

5 Meaning the partiality of the persons challenged, such as animos- 
ity toward the accused, conduct showing bias against him, and the 
like. S«e Bouviers Law Dictionary: Rawle, 3d revision, n, 1191. 



410 JOHN MARSHALL 

tor William Branch Giles. Merely upon the docu- 
ments in Jefferson's Special Message to Congress, 
Giles had advocated that the writ of habeas corpus 
be suspended, and this, argued Burr, he could have 
done only if he supposed "that there was a rebellion 
or insurrection, and a public danger, of no common 
kind." This action of Giles was a matter of record; 
moreover, he had publicly made statements to the 
same effect. 1 

Senator Giles admitted that he had acted and 
spoken as Burr charged; and while denying that 
he held any "personal resentments against the ac- 
cused," and asserting that he could act fairly as 
a grand juror, he graciously offered to withdraw. 
Marshall mildly observed that "if any gentleman 
has made up and declared his mind, it would be best 
for him to withdraw." With superb courtesy, Burr 
disavowed any reflection on Giles; it was merely 
above "human nature" that he should not be preju- 
diced. "So far from having any animosity against 
him, he would have been one of those whom I should 
have ranked among my personal friends." 

Burr then challenged Colonel Wilson Cary Nicho- 
las, 2 who spiritedly demanded the objections to him. 
Nicholas "entertained a bitterly personal animos- 
ity " against him, replied Burr. He would not, how- 
ever, insist upon "further inquiry" if Nicholas would 
withdraw as Giles had done. Nicholas then ad- 
dressed the court. He had been a member of the 
National House, he said, "when the attempt was 
made to elect colonel Burr president," and every- 

1 Burr Trials, i, 38-39. 2 lb. 41-42. 



ADMINISTRATION VERSUS COURT 411 

body knew how he felt about that incident. He had 
been in the Senate for three years "while colonel 
Burr was president of that body," and had done all 
he could to nominate Clinton in Burr's stead. 

His suspicions had been "very much excited" 
when Burr made his Western journey, and he had 
openly stated his "uncommon anxiety" concerning 
"not only the prosperity, but the union of the 
states." Therefore, he had not desired to serve on 
the grand jury and had asked the marshal to excuse 
him. He had finally consented solely from his deli- 
cate sense of public duty. Also, said Nicholas, he 
had been threatened with the publication of one of 
the "most severe pieces" against him if he served 
on the grand jury; and this inclined him to "defy 
[his] enemies [rather] than to ask their mercy or 
forbearance." 

His friends had advised him not to make mention 
of this incident in court; but, although he was "not 
scrupulous of acquiring, in this way, a reputation of 
scrupulous delicacy," and had determined to heed 
the counsel of his friends, still, he now found himself 
so confused that he did not know just what he ought 
to do. On the whole, however, he thought he would 
follow the example of Senator Giles and withdraw. 1 

At that very moment, Nicholas was a Republican 
candidate for Congress and, next to Giles, Jefferson's 
principal political agent in Virginia. Four days after 
Burr had been brought to Richmond, Jefferson had 
written Nicholas a letter of fulsome flattery "be- 
seeching" him to return to the National House in 

1 Burr Trials, i, 41-42. 



412 JOHN MARSHALL 

the place of the President's son-in-law, Thomas 
Mann Randolph, who had determined to retire, and 
assuring him of the Republican leadership if he 
would do so. 1 

Thus, for a moment, was revealed a thread of 
that web of intrigue and indirect influence which, 
throughout the trial, was woven to enmesh judge, 
jury, and public. Burr was instantly upon his feet 
denouncing in his quiet but authoritative manner 
the "attempt to intimidate" Nicholas as "a con- 
trivance of some of [his] enemies for the purpose of 
irritating" the hot-blooded Republican politician 
"and increasing the public prejudice against [Burr]; 
since it was calculated to throw suspicion on [his] 
cause." Neither he nor his friends had ever "sanc- 
tioned" such an act; they were wholly ignorant of 
it, and viewed it "with indignation." 2 

Mr. Joseph Eggleston, another of the grand jurors, 
now asked to be excused because he had declared his 
belief of Burr's guilt; but he admitted, in answer to 
Marshall's questions, that he could act justly in the 
impending investigation. Burr said that he would 
not object to Eggleston: "the industry which has 
been used through this country [Virginia] to prejudice 
my cause, leaves me very little chance, indeed, of 
an impartial jury." Eggleston's "candour . . in 
excepting to himself " caused Burr to hope that he 
would "endeavour to be impartial." But let Mar- 
shall decide — Burr would be "perfectly passive." 3 
The scrupulous grand juror was retained. 

1 Jefferson to Nicholas, Feb. 28, 1807, Works: Ford, x, 370-71. 

2 Burr Trials, I, 43. 3 lb. 44. 



ADMINISTRATION VERSUS COURT 413 

John Randolph and Dr. "William Foushee were 
then added to the grand jury panel and Marshall 
appointed Randolph foreman. 1 He promptly asked 
to be excused because of his "strong prepossession." 
"Really," observed Burr, "I am afraid we shall not 
be able to find any man without this prepossession." 
Marshall again stated "that a man must not only 
have formed but declared an opinion in order to 
excuse him from serving on the jury." So Randolph 
was sworn as foreman, the oath administered to all, 
and at last the grand jury was formed. 2 

Marshall then instructed the jury, the substance of 
his charge being to the same effect as his opinion in 
the case of Bollmann and Swartwout. Burr asked 
the Chief Justice also to advise the men who were to 
decide the question of his indictment "as to the ad- 
missability of certain evidence" which he supposed 
Hay would lay before them. The District Attorney 
objected to any favor being shown Burr, "who," he 
declared, "stood on the same footing with every 
other man charged with crime." 

For once Burr unleashed his deep but sternly 

1 In view of the hatred which Marshall knew Randolph felt to- 
ward Jefferson, it is hard to reconcile his appointment with the fair- 
ness which Marshall tried so hard to display throughout the trial. 
However, several of Jefferson's most earnest personal friends were 
on the grand jury, and some of them were very powerful men. Also 
fourteen of the grand jury were Republicans and only two were Fed- 
eralists. 

2 Burr Trials, I, 45-46. This grand jury included some of the fore- 
most citizens of Virginia. The sixteen men who composed this body 
were: John Randolph, Jr., Joseph Eggleston, Joseph C. Cabell, Little- 
ton W. Tazewell, Robert Taylor, James Pleasants, John Brocken- 
brough, William Daniel, James M. Garnett, John Mercer, Edward 
Pegram, Munford Beverly, John Ambler, Thomas Harrison, Alex- 
ander Shephard, and James Barbour. 



414 JOHN MARSHALL 

repressed feeling: "Would to God," he cried, his 
voice vibrant with emotion, "that I did stand on 
the same ground with every other man. This is the 
first time [since the military seizure] that I have been 
permitted to enjoy the rights of a citizen. How have 
I been brought hither? " Marshall checked this pas- 
sionate outburst: it was not proper, he admonished 
both Hay and Burr, to "go into these digressions." 

His composure restored, Burr insisted that he 
should be accorded "the same privileges and rights 
which belonged to every other citizen." He would 
not now urge his objections to Marshall's opinion 
in the Bollmann-Swartwout case; x but he pointed 
out "the best informed juryman might be ignorant 
of many points . . relating to testimony, . . for in- 
stance, as to the article of papers," and he wished 
Marshall to inform the jury on these matters of law. 

A brief, sharp debate sprang up, during which 
Burr's counsel spoke of the "host of prejudices 
raised against [their] client," taunted Hay with his 
admission "that there was no man who had not 
formed an opinion," and denounced "the activity of 
the Government." 2 Upon Hay's pledging himself 
that he would submit no testimony to the grand 
jury "without notice being first given to Colonel 
Burr and his counsel," Marshall adjourned the 
court that the attorneys might prepare for ' ' further 

1 Marshall's error in this opinion, or perhaps the misunderstanding 
of a certain passage of it (see supra, 350), caused him infinite perplexity 
during the trial; and he was put to his utmost ingenuity to extricate 
himself. The misconstruction by the grand jury of the true meaning 
of Marshall's charge was one determining cause of the grand jury's 
decision to indict Burr. (See infra, 466.) 

2 Burr Trials, i, 47-48. 



ADMINISTRATION VERSUS COURT 415 

discussion." The Government was not ready to 
present any testimony on either the following day 
or on Monday because its principal witness, Gen- 
eral Wilkinson, had not arrived. 

Hay now sent Jefferson his first report of the 
progress of the case. Burr had steadily been mak- 
ing friends, and this irritated the District Attorney 
more than the legal difficulties before him. "I am 
surprised, and afflicted, when I see how much, and 
by how many, this man has been patronised and 
supported." Hay assured Jefferson, however, that 
he would "this day move to commit him for trea- 
son." 1 Accordingly, he announced in the presence 
of the grand jury that he would again ask the court 
to imprison Burr on that accusation. In order, he 
said, that the impropriety of mentioning the subject 
in their presence might be made plain, Burr moved 
that the grand jury be withdrawn. Marshall sus- 
tained the motion; and after the grand jury had 
retired, Hay formally moved the court to order 
Burr's incarceration upon the charge of treason. 2 

Burr's counsel, surprised and angered, loudly 
complained that no notice had been given them. 
With a great show of generosity, Hay offered to de- 
lay his motion until the next day. "Not a moment's 
postponement," shouted Botts, his fighting nature 
thoroughly aroused. Hay's "extraordinary applica- 
tion," he said, was to place upon the court the func- 
tions of the grand jury. Burr wanted no delay. His 
dearest wish was to "satisfy his country . . and even 

1 Hay to Jefferson, May 25, 1807, Jefferson MSS. Lib. Cong. 

2 Burr Trials, I, 48-51. 



416 JOHN MARSHALL 

his prosecutors, that he is innocent." Was ever a 
man so pursued? He had been made the victim of 
unparalleled military despotism; his legal rights 
had been ignored ; his person and papers unlawfully 
seized. The public had been excited to anger. 
Through newspaper threats and "popular clamor" 
attempts had been made to intimidate every officer 
of the court. Consider "the multitude around us" 
— they must not be further infected " with the 
poison already too plentifully infused." 

Did Hay mean to "open the case more fully?" 
inquired Marshall. No, answered Hay; but Wilkin- 
son's arrival in Virginia might be announced before 
he reached Richmond. Who could tell the effect 
on Burr of such dread tidings? The culprit might 
escape; he must be safely held. 1 "The bets were 
against Burr that he would abscond, should W. come 
to Richmond." 2 

If Wilkinson is so important a witness, "why is 
he not here?" demanded Wickham. Everybody 
knew that "a set of busy people . . are laboring to 
ruin" Burr. "The press, from one end of the con- 
tinent to the other, has been enlisted . . to excite 
prejudices" against him. Let the case be decided 
upon "the evidence of sworn witnesses" instead of 
"the floating rumours of the day." 

Did the Government's counsel wish that "the 
multitude around us should be prejudiced by garbled 
evidences?" Wickham avowed that he could not 
understand Hay's motives, but of this he was sure — 

1 Burr Trials, i, 53-54. 

2 Irving to Paulding, June 22, 1807, Life and Letters of Washington 
Irving: Irving, i, 145. 



ADMINISTRATION VERSUS COURT 417 

that if, thereafter, the Government wished to oppress 
any citizen, drag him by military force over the 
country, prejudice the people against him, it would 
"pursue the very same course which has now been 
taken against colonel Burr." The prosecution ad- 
mitted that it had not enough evidence to lay before 
the grand jury, yet they asked to parade what they 
had before the court. Why? — " to nourish and keep 
alive" the old prejudices now growing stale. 1 

Wirt answered at great length. He understood 
Wickham's purpose, he said. It was to "divert the 
public attention from Aaron Burr," and "shift the 
popular displeasure . . to another quarter." Wick- 
ham's speech was not meant for the court, exclaimed 
Wirt, but for "the people who surround us," and 
so, of course, Marshall would not heed it. Burr's 
counsel "would convert this judicial inquiry into a 
political question . . between Thomas Jefferson and 
Aaron Burr." 

Not to be outdone by his gifted associate, Hay 
poured forth a stream of words: "Why does he 
[Burr] turn from defending himself to attack the 
administration?" he asked. He did not answer his 
own question, but Edmund Randolph did: "An order 
has been given to treat colonel Burr as an outlaw, 
and to burn and destroy him and his property." 
Jefferson, when requested, had furnished the House 
information; — "would to God he had stopped here, 
as an executive officer ought to have done!" But 
instead he had also pronounced Burr guilty — an 
opinion calculated to affect courts, juries, the people. 

1 Burr Trials, I, 57-58. 



*18 JOHN MARSHALL 

Wickham detailed the treatment of Burr, "the only 
man in the nation whose rights are not secure from 
violation." x 

Burr himself closed this unexpected debate, so 
suddenly thrust upon his counsel and himself. His 
speech is a model of that simple, perspicuous, and 
condensed statement of which he was so perfectly 
the master. He presented the law, and then, turning 
to Hay, said that two months previous the District 
Attorney had declared that he had enough evidence 
to justify the commitment, and surely he must have 
it now. Nearly half a year had elapsed since Jeffer- 
son had "declared that there was a crime," and yet, 
even now, the Government was not ready. Never- 
theless, the court was again asked to imprison 
him for an alleged offense for which the prosecu- 
tion admitted it had not so much as the slight 
evidence required to secure his indictment by the 
grand jury. 

Were the Government and he "on equal terms?" 
Far from it. "The United States [could] have com- 
pulsory process" to obtain affidavits against him/ 
but he had "no such advantage." So the prosecu« 
tion demanded his imprisonment on ex parte evi- 
dence which would be contradicted by his own 
evidence if he could adduce it. Worse still! The 
Government affidavits against him "are put into 
the newspapers, and they fall into the hands of the 
grand jury." Meanwhile, he was helpless. And now 
the opinion of the court was also to be added to the 
forces working to undo him. 

1 Burr Trials, i, 58-76. 



ADMINISTRATION VERSUS COURT 419 

Wirt and Hay had charged his counsel "with 
declamation against the government." Certainly 
nobody could attribute "declamation" to him; but, 
said Burr, his restrained voice tense with suppressed 
emotion, "no government is so high as to be beyond 
the reach of criticism" — that was a fundamental 
principle of liberty. This was especially true when 
the Government prosecuted a citizen, because of 
"the vast disproportion of means which exists be- 
tween it and the accused." And "if ever there was a 
case which justified this vigilance, it is certainly the 
present one"; let Marshall consider the "uncommon 
activity " of the Administration. 

Burr would, he said, "merely state a few" of 
the instances of "harrassing, . . contrary to law" to 
which he had been subjected. His "friends had been 
every where seized by the military authority," 
dragged before "particular tribunals," and forced 
to give testimony; his papers taken; orders to kill 
him issued; post-offices broken open and robbed — ■ 
"nothing seemed too extravagant to be forgiven by 
the amiable morality of this government." Yet it 
was for milder conduct that Americans rightly con- 
demned "European despotisms." 

The President was a great lawyer; surely " he ought 
to know what constitutes war. Six months ago he 
proclaimed that there was a civil war. And yet, for 
six months they have been hunting for it and cannot 
find one spot where it existed. There was, to be sure, 
a most terrible war in the newspapers; but no where 
else." He had been haled before the court in 
Kentucky — and no proof; in Mississippi — and no 



420 JOHN MARSHALL 

proof. The Spaniards actually invaded American 
territory — even then there was no war. 

Thus early the record itself discloses the dramatic, 
and, for Marshall, perilous, conditions under which 
this peculiar trial was to be conducted. The record 
makes clear, also, the plan of defense which Burr 
and his counsel were forced to adopt. They must 
dull the edge of public opinion sharpened to a bit- 
ing keenness by Jefferson. They must appeal to the 
people's hatred of oppression, fear of military rule, 
love of justice. To do this they must attack, attack, 
always attack. 

They must also utilize every technical weapon of 
the law. At another time and place they could have 
waived, to Burr's advantage, all legal rights, insisted 
upon his indictment, and gone to trial, relying only 
upon the evidence. But not in the Virginia of 1807, 
with the mob spirit striving to overawe jury and 
court, and ready to break out in violent action — 
not at the moment when the reign of Thomas Jeffer- 
son had reached the highest degree of popular 
idolatry. 

Just as Hay, Wirt, and MacRae generally spoke 
to the spectators far more than to the Bench, so did 
Wickham, Randolph, Botts, and Martin. 1 Both sides 
so addressed the audience that their hearers were 
able to repeat to the thousands who could not get 
into the hall what had been said by the advocates. 

1 "I . . contented myself . . with . . declaring to the Audience (for 
two thirds of our speeches have been addressed to the people) that I 
was prepared to give the most direct contradiction to the injurious 
Statements." (Hay to Jefferson, June 14, 1807, giving the President 
an account of the trial, Jefferson MSS. Lib. Cong.) 



ADMINISTRATION VERSUS COURT 421 

From the very first the celebrated trial of Aaron 
Burr was a contest for the momentary favor of pub- 
lic opinion; and, in addition, on the part of Burr, an 
invoking of the law to shield him from that popu- 
lar wrath which the best efforts of his defenders 
could not wholly appease. 

Marshall faced a problem of uncommon difficulty. 
It was no small matter to come between the popu- 
lace and its prey — no light adventure to brave the 
vengeance of Thomas Jefferson. Not only his public 
repute x — perhaps even his personal safety 2 and 
his official life 3 — but also the now increasing in- 
fluence and prestige of the National Judiciary were 
in peril. However, he must do justice no matter 
what befell — he must, at all hazards, pronounce 
the law truly and enforce it bravely, but with elas- 
tic method. He must be not only a just, but also 
an understanding, judge. 

When court opened next morning, Marshall was 
ready with a written opinion. Concisely he stated 
the questions to be decided: Had the court the power 
to commit Burr, and, if so, ought the circumstances 
to restrain the exercise of it? Neither side had made 
the first point, and Marshall mentioned it only 
"to show that it [had] been considered." Briefly he 
demonstrated that the court was clothed with au- 
thority to grant Hay's motion. Should that power, 

1 He was hanged in effigy soon after the trial. (See infra, 5S9.) 

2 It must be remembered that Marshall himself declared, in the 
very midst of the contest, that it would be dangerous for a jury to 
acquit Burr. (See supra, 401.) 

3 He had narrowly escaped impeachment (see supra, chap, iv), and 
during the trial he was openly threatened with that ordeal (see infra, 
500). 



422 JOHN MARSHALL 

then, be exerted? Marshall thought that it should. 
The Government had the right to ask Burr's in- 
carceration at any time, and it was the duty of the 
court to hear such a motion. 

Thus far spoke Marshall the judge. In the closing 
sentences the voice of the politician was heard: "The 
court perceives and regrets that the result of this 
motion may be publications unfavourable to the 
justice, and to the right decision of the case"; but 
this must be remedied " by other means than by re- 
fusing to hear the motion." Every honest and in- 
telligent man extremely deplored "any attempt . . 
to prejudice the public judgment, and to try any 
person," not by the law and the evidence, but "by 
public feelings which may be and often are artifi- 
cially excited against the innocent, as well as the 
guilty, . . a practice not less dangerous than it is 
criminal." Nevertheless he could not "suppress 
motions, which either party may have a legal right 
to make." So, if Hay persisted, he might "open his 
testimony." * 

While Marshall, in Richmond, was reading this 
opinion, Jefferson, in Washington, was writing 
directions to Hay. He was furious at " the criminal 
and voluntary retirement" of Giles and Nicholas 
from the grand jury "with the permission of the 
court." The opening of the prosecution had cer- 
tainly begun "under very inauspicious circum- 
stances." One thing was clear: "It becomes our 
duty to provide that full testimony shall be laid be- 
fore the Legislature, and through them the public." 
1 Burr Trials, i, 79-81. 



ADMINISTRATION VERSUS COURT 423 

If the grand jury should indict Burr, then Hay 
must furnish Jefferson with all the evidence, "taken 
as verbatim as possible." Should Burr not be in- 
dicted, and no trial held and no witnesses ques- 
tioned in court, then Hay must "have every man 
privately examined by way of affidavit," and send 
Jefferson "the whole testimony" in that form. 
"This should be done before they receive their 
compensation, that they may not evade examina- 
tion. Go into any expense necessary for this pur- 
pose, 1 & meet it from the funds provided to the 
Attorney general for the other expenses." 2 

Marshall's decision perplexed Hay. It interfered 
with his campaign of publicity. If only Marshall had 
denied his motion, how effectively could that inci- 
dent have been used on public sentiment! But now 
the Republican press could not exclaim against 
Marshall's "leniency" to "traitors" as it had done. 
The people were deprived of fresh fuel for their patri- 
otic indignation. Jefferson would be at a loss for a 
new pretext to arouse them against the encroach- 
ments of the courts upon their "liberties." 

Hay strove to retrieve the Government from this 
disheartening situation. He was "struck," he said, 
with Marshall's reference to "publications." To 
avoid such newspaper notoriety, he would try to 
arrange with Burr's counsel for the prisoner's ap- 
pearance under additional bail, thus avoiding insist- 
ence upon the Government's request for the impris- 
onment of the accused. Would Marshall adjourn 

1 See supra, 390-91. 

2 Jefferson to Hay , May 26, 1807, Works: Ford, x, footnote to 394-95. 



424 JOHN MARSHALL 

court that this amicable arrangement might be 
brought about? Marshall would and did. 

But next day found Hay unrelieved ; Burr's counsel 
had refused, in writing, to furnish a single dollar of 
additional bail. To his intense regret, Hay lamented 
that he was thus forced to examine his witnesses. 
Driven to this unpleasant duty, he would follow the 
"chronological order — first the depositions of the 
witnesses who were absent, and afterwards those 
who were present.'' 1 

The alert Wickham demanded "strict legal order." 
The Government must establish two points: the per- 
petration of an overt act, and "that colonel Burr 
was concerned in it." 2 Hay floundered — there was 
one great plot, he said, the two parts of it "inti- 
mately blended"; the projected attack on Spain and 
the plot to divide the Union were inseparable — he 
must have a free hand if he were to prove this 
wedded iniquity. Was Burr afraid to trust the 
court? 

Far from it, cried Wickham, "but we do fear to 
prejudicate the mind of the grand jury. . . All pro- 
priety and decorum have been set at naught; everj 
idle tale which is set afloat has been eagerly caught 
at. The people here are interested by them; and they 
circulate all over the country." 3 Marshall inter- 
rupted: "No evidence certainly has any bearing . . 
unless the overt act be proved." Hay might, how- 
ever, "pursue his own course." 

A long altercation followed. Botts made an ex- 
tended speech, in the course of which he discredited 

1 Butt Trials, I, 81-82. a lb. 82. * lb. 84-85. 



ADMINISTRATION VERSUS COURT 425 

the Government's witnesses before they were intro- 
duced. They were from all over the country, he 
said, their "names, faces and characters, are alike 
unknown to colonel Burr." To what were they to 
testify? Burr did not know — could not possibly 
ascertain. "His character has long been upon pub- 
lic torture; and wherever that happens . . the im- 
pulses to false testimony are numerous. Sometimes 
men emerge from the sinks of vice and obscurity 
into patronage and distinction by circulating inter- 
esting tales, as all those of the marvelous kind are. 
Others, from expectation of office and reward, vol- 
unteer; while timidity, in a third class, seeks to 
guard against the apprehended danger, by magnify- 
ing trifling stories of alarm. . . When they are after- 
wards called to give testimony, perjury will not ap- 
pal them, if it be necessary to save their reputa- 
tions." Therefore, reasoned Botts — and most justly 
— strict rules of evidence were necessary. 1 

Hay insisted that Wilkinson's affidavit demon- 
strated Burr's intentions. That "goes for nothing," 
said Marshall, "if there was no other evidence to 
prove the overt act." Therefore, "no part of it [was] 
admissible at this time." 2 Thrice Marshall pa- 
tiently reminded Government counsel that they 
charged an overt act of treason and must prove it. 3 

Hay called Peter Taylor, Blennerhassett's former 
gardener, and Jacob Allbright, once a laborer on 
the eccentric Irishman's now famous island. Both 
were illiterate and in utter terror of the Govern- 
ment. Allbright was a Dutchman who spoke Eng- 

1 Burr Trials, i, 91. 2 lb. 94. 3 lb. 95-96. 



426 JOHN MARSHALL 

lish poorly; Taylor was an Englishman; and they 
told stories equally fantastic. Taylor related that 
Mrs. Blennerhassett had sent him to Kentucky 
with a letter to Burr warning him not to return to 
the island; that Burr was surprised at the people's 
hostility; that Blennerhassett, who was also in Ken- 
tucky, confided they were going to take Mexico and 
make Burr king, and Theodosia queen when her 
father died ; also that Burr, Blennerhassett, and their 
friends had bought "eight hundred thousand acres 
of land" and "wanted young men to settle it," and 
that any of these who should prove refractory, he 
[Blennerhassett] said, "by God, . . I will stab"; 
that Blennerhassett had also said it would be a fine 
thing to divide the Union, but Burr and himself 
could not do it alone. 

Taylor further testified that Blennerhassett once 
sent him with a letter to a Dr. Bennett, who lived in 
Ohio, proposing to buy arms in his charge belonging 
to the United States — if Bennett could not sell, he 
was to tell where they were, and Blennerhassett 
"would steal them away in the night"; that his 
employer charged him "to get [the letter] back 
and burn it, for it contained high treason"; and 
that the faithful Taylor had done this in Bennett's 
presence. 

Taylor narrated the scene on the island when 
Blennerhassett and thirty men in four boats fled in 
the night : some of the men had guns and there was 
some powder and lead. 1 

Jacob Allbright told a tale still more marvelous. 

1 Burr Trials, i, 492-9* 



ADMINISTRATION VERSUS COURT 427 

Soon after his employment, Mrs. Blennerhassett had 
come to this dull and ignorant laborer, while he was 
working on a kiln for drying corn, and confided to 
him that Burr and her husband "were going to lay 
in provisions for an army for a year"; that Blen- 
nerhassett himself had asked Allbright to join the 
expedition which was going "to settle a new coun- 
try." Two men whom the Dutch laborer met in the 
woods hunting had revealed to him that they were 
"Burr's men," and had disclosed that "they were 
going to take a silver mine from the Spanish"; that 
when the party was ready to leave the island, Gen- 
eral Tupper of Ohio had "laid his hands upon Blen- 
nerhassett and said, 'your body is in my hands 
in the name of the commonwealth,'" whereupon 
"seven or eight muskets [were] levelled" at the 
General; that Tupper then observed he hoped they 
would not shoot, and one of the desperadoes re- 
plied, "I'd as lieve as not"; and that Tupper then 
"changed his speech," wished them "to escape 
safe," and bade them Godspeed. 

Allbright and Taylor were two of the hundreds to 
whom the Government's printed questions had been 
previously put by agents of the Administration. In 
his answers to these, Allbright had said that the 
muskets were pointed at Tupper as a joke. 1 Both 
Taylor and he swore that Burr was not on the 
island when Blennerhassett's men assembled there 
and stealthily departed in hasty flight. 

To the reading of the deposition of Jacob Dun- 
baugh, Burr's counsel strenuously objected. It was 

1 Burr Trials, i, 509-14. 



428 JOHN MARSHALL 

not shown that Dunbaugh himself could not be pro- 
duced; the certification of the justice of the peace, 
before whom the deposition was taken, was defec- 
tive. For the remainder of the day the opposing law- 
yers wrangled over these points. Marshall adjourned 
court and "took time to consider the subject till the 
next day"; when, in a long and painfully technical 
opinion, he ruled that Dunbaugh's affidavit could 
not be admitted because it was not properly authen- 
ticated. 1 

May 28, when the court again convened, was 
made notable by an event other than the reading of 
the unnecessarily long opinion which Marshall had 
written during the night: the crimson-faced, belli- 
cose superman of the law, Luther Martin, appeared 
as one of Burr's counsel. 2 The great lawyer had 
formed an ardent admiration and warm friendship 
for Burr during the trial of the Chase impeach- 
ment, 3 and this had been intensified when he met 
Theodosia, with whom he became infatuated. 4 He 
had voluntarily come to his friend's assistance, and 
soon threw himself into the defense of Burr with all 
the passion of his tempestuous nature and all the 
power and learning of his phenomenal intellect. 

After vexatious contendings by counsel as to 
whether Burr should give additional bail, 5 Marshall 
declared that " as very improper effects on the public 
mind [might] be produced," he wished that no opin- 
ion would be required of him previous to the action of 

1 Burr Trials, i, 97-101. 2 lb. 97. 

3 Md. Hist. Soc. Fund-Pub. No. U, 22. 
* Blennerhassett Papers: Safford, 468-69. 
6 Burr Trials, i, 101-04. 




LUTHEK MARTIN 



ADMINISTRATION VERSUS COURT 429 

the grand jury; and that the "appearance of colonel 
Burr could be secured without . . proceeding in this 
inquiry." Burr denied the right of the court to hold 
him on bail, but said that if Marshall was "embar- 
rassed," he voluntarily would furnish additional bail, 
"provided it should be understood that no opinion 
on the question even of probable cause was pro- 
nounced by the court." * Marshall agreed; and Burr 
with four sureties, among whom was Luther Martin, 
gave bond for ten thousand dollars more. 2 

Day after day, court, grand jury, counsel, and 
spectators awaited the coming of Wilkinson. The 
Government refused to present any testimony to 
the grand jury until he arrived, although scores of 
witnesses were present. Andrew Jackson was very 
much in town, as we have seen. So was Commodore 
Truxtun. And "General" William Eaton was also 
on hand, spending his time, when court was not in 
session, in the bar-rooms of Richmond. 

Wearing a "tremendous hat," clad in gay col- 
ored coat and trousers, with a flaming Turkish belt 
around his waist, Eaton was already beginning to 
weaken the local hatred of Burr by his loud bluster- 
ing against the quiet, courteous, dignified prisoner. 3 
Also, at gambling-tables, and by bets that Burr 
would be convicted, the African hero was making 
free with the ten thousand dollars paid him by the 
Government soon after he made the bloodcurdling 

1 Burr Trials, i, 105. 

2 The men who went on this second bail bond for Burr were: Wil- 
liam Langburn, Thomas Taylor, John G. Gamble, and Luther Martin. 
(lb. 106.) 

3 Blennerhassett Papers: Safford, 315-16. 



430 JOHN MARSHALL 

affidavit 1 with which Jefferson had so startled Con- 
gress and the country. 

While proceedings lagged, Marshall enjoyed the 
dinners and parties that, more than ever, were given 
by Richmond society. On one of these occasions 
that eminent and ardent Republican jurist, St. 
George Tucker, was present, and between him and 
Marshall an animated discussion grew out of the 
charge that Burr had plotted to cause the seces- 
sion of the Western States; it was a forecast of the 
tremendous debate that was to end only at Appo- 
mattox. "Judge Tucker, though a violent Demo- 
crat," records Blennerhassett, "seriously contended 
. . with Judge Marshall . . that any State in the Union 
is at any time competent to recede from the same, 
though Marshall strongly opposed this doctrine." 2 

Hay wrote Jefferson of the slow progress of the 
case, and the President "hastened" to instruct his 
district attorney: If the grand jury should refuse to 
indict Burr, Hay must not deliver the pardon to 
Bollmann; otherwise, "his evidence is deemed en- 
tirely essential, & . . his pardon is to be produced 
before he goes to the book." Jefferson had become 
more severe as he thought of Bollmann, and now 
actually directed Hay to show, in open court, to 
this new object of Presidential displeasure, the 
"sacredly confidential" statement given Jefferson 
under pledge of the latter 's "word of honor" that it 
should never leave his hand. Hay was directed to ask 
Bollmann whether "it was not his handwriting." 3 

1 Eaton: Prentiss, 396-403; 4 Cranch, 463-66. 

2 Blennerhassett Papers: Safford, 425. 

3 Jefferson to Hay, May 28, 1807, Works: Ford, x, 395-96. 



ADMINISTRATION VERSUS COURT 431 

With the same ink on his pen the President wrote 
his son-in-law that he had heard only of the first day 
of the trial, but was convinced that Marshall meant 
to do all he could for Burr. Marshall's partiality 
showed, insisted Jefferson, "the original error of 
establishing a judiciary independent of the nation, 
and which, from the citadel of the law can turn it's 
guns on those they were meant to defend, & controul 
& fashion their proceedings to it's own will." 1 

Hay quickly answered Jefferson: The trial had 
"indeed commenced under inauspicious circum- 
stances," and doubtless these would continue to be 
unfavorable. Nobody could predict the outcome. 
Hay was so exhausted and in such a state of mind 
that he could not describe "the very extraordinary 
occurrences in this very extraordinary examination." 
Burr's "partizans" were gloating over the failure of 
Wilkinson to arrive. Bollmann would neither accept 
nor reject the pardon; he was " as unprincipled as his 
leader." Marshall's refusal to admit Dunbaugh's 
affidavit was plainly illegal — "his eyes [were] almost 
closed" to justice. 2 

Jefferson now showered Hay with orders. The 
reference in argument to Marshall's opinion in Mar- 
bury vs. Madison greatly angered him: "Stop . . cit- 
ing that case as authority, and have it denied to be 
law," he directed Hay, and gave him the arguments 
to be used against it. An entire letter is devoted to 
this one subject: "I have long wished for a proper 
occasion to have the gratuitous opinion in Marbury 

1 Jefferson to Eppes, May 28, 1807, Works: Ford, x, 412-13. 

2 Hay to Jefferson, May 31, 1807, Jtfferson MSS. Lib. Cong. 



432 JOHN MARSHALL 

v. Madison brought before the public, & denounced 
as not law; & I think the present a fortunate one, 
because it occupies such a place in the public 
attention." 

Hay was openly to declare that the President 
rejected Marshall's opinion in that case as having 
been "given extra-judicially & against law," and 
that the reverse of it would be Jefferson's "rule of 
action." If necessary, Hay might state that the 
President himself had said this. 1 

Back and forth went letters from Hay to Jefferson 
and from Jefferson to Hay, 2 the one asking for in- 
structions and the other eagerly supplying them. 
To others, however, the President explained that he 
could take no part in any judicial proceeding, since 
to do so would subject him to "just censure." 3 

In spite of the abundance of Government wit- 
nesses available, the prosecution refused to go on 
until the redoubtable savior of his country had ar- 
rived from New Orleans. Twice the grand jury had 
to be dismissed for several days, in order, merrily 
wrote Washington Irving, "that they might go 
home, see their wives, get their clothes washed, and 
flog their negroes." 4 A crowd of men ready to testify 
was held. The swarms of spectators waited with 
angry impatience. "If the great hero of the South 
does not arrive, it is a chance if we have any trial 
this term," 5 commented Irving. 

1 Jefferson to Hay, June 2, 1807, Works: Ford, x, 396-97. 

2 Same to same, June 5, 1807, ib. 397-98; Hay to Jefferson, same 
date, Jefferson MSS. Lib. Cong. ; and others cited, infra. 

3 Jefferson to Dayton, Aug. 17, 1807, Works: Ford, x, 478. 

* Irving to Mrs. Hoffman, June 4, 1807, Irving, i, 142. 8 lb. 



ADMINISTRATION VERSUS COURT 433 

During this period of inaction and suspense, sud- 
denly arose one of the most important and exciting 
questions of the entire trial. On June 9, while coun- 
sel and court were aimlessly discussing Wilkinson's 
journey to Richmond, Burr arose and said that he 
had a "proposition to submit" to the court. The 
President in his Message to Congress had made 
mention of the letter and other papers dated Octo- 
ber 21, which he had received from Wilkinson. It 
had now become material that this letter should be 
produced in court. 

Moreover, since the Government had "attempted 
to infer certain intentions on [his] part, from certain 
transactions," such as his flight from Mississippi, 
it had become necessary to prove the conditions 
that forced him to attempt that escape. Vital 
among these were orders of the Government to the 
army and navy "to destroy" Burr's "person and 
property." He had seen these orders in print, 1 and 
an officer had assured him that such instructions had 
actually been issued. It was indispensable that this 
be established. The Secretary of the Navy had re- 
fused to allow him or his counsel to inspect these 
orders. "Hence," maintained Burr, "I feel it neces- 
sary . . to call upon [the court] to issue a subpoena 
to the President of the United States, with a clause, 
requiring him to produce certain papers; or in 
other words, to issue the subpoena duces tecum." If 
Hay would agree to produce these documents, the 
motion would not be made. 2 

1 Burr had seen the order in the Natchez Gazette. It was widely 
published. 

2 Burr Trials, i, 113-14. 



434 JOHN MARSHALL 

Hay was sadly confused. He would try to get all 
the papers wanted if Marshall would say that they 
were material. How, asked Marshall, could the 
court decide that question without inspecting the pa- 
pers? "Why . . issue a subpoena to the President?" 
inquired Hay. Because, responded Marshall, "in 
case of a refusal to send the papers, the officer him- 
self may be present to show cause. This subpoena is 
issued only where fears of this sort are entertained." 

Counsel on both sides became angry. Hay denied 
the authority of the court to issue such a writ. 
Marshall called for argument, because, he said, "I 
am not prepared to give an opinion on this point." 1 
Thus arose the bitter forensic struggle that preceded 
Marshall's historic order to Jefferson to come into 
court with the papers demanded, or to show cause 
why he should not do so. 

Hay instantly dispatched the news to Jefferson; 
he hoped the papers would be "forwarded without 
delay, " because "detention of them will afford [Burr] 
pretext for clamor." Besides, "L. Martin has been 
here a long time, perfectly inactive"; he was yearn- 
ing to attack Jefferson and this would "furnish a 
topic." 2 

The President responded with dignified caution: 
"Reserving the necessary right of the President of 
the U S to decide, independently of all other author- 
ity, what papers, coming to him as President, the 
public interests permit to be communicated, & to 
whom, I assure you of my readiness under that 

1 Burr Trials, i, 115-18. 

1 Hay to Jefferson, June 9, 1807, Jefferson MSS. Lib. Cong. 



ADMINISTRATION VERSUS COURT 435 

restriction, voluntarily to furnish on all occasions, 
whatever the purposes of justice may require." He 
had given the Wilkinson letter, he said, to the 
Attorney-General, together with all other documents 
relating to Burr, and had directed the Secretary of 
War to search the files so that he (Jefferson) could 
"judge what can & ought to be done" about sending 
any order of the Department to Richmond. 1 

When Marshall opened court on June 10, Burr 
made affidavit that the letters and orders might be 
material to his defense. Hay announced that he had 
written Jefferson to send the desired papers and 
expected to receive them within five days. They 
could not, however, be material, and he did not 
wish to discuss them. Martin insisted that the pa- 
pers be produced. Wickham asked what Hay was 
trying to do — probably trying to gain time to send 
to Washington for instructions as to how the prose- 
cution should now act. 

Was not "an accused man . . to obtain witnesses 
in his behalf?" Never had the denial of such a right 
been heard of "since the declaration of American 
Independence." The despotic treatment of Burr 
called aloud not only for the court's protection of 
the persecuted man, but " to the protection of every 
citizen in the country as well." 2 So it seemed to 
that discerning fledgling author, Washington Irving. 
"I am very much mistaken," he wrote, "if the most 
underhand . . measures have not been observed 
toward him. He, however, retains his serenity." 3 

1 Jefferson to Hay, June 12, 1807, Works: Ford, x, 398-99. 

2 Burr Trials, i, 124-25. 

1 Irving to Mrs. Hoffman, June 4, 1807, Irving, I, 143. 



436 JOHN MARSHALL 

Luther Martin now took the lead: Was Jefferson 
"a kind of sovereign?" No! "He is no more than 
a servant of the people." Yet who could tell what 
he would do? In this case his Cabinet members, 
"under presidential influence," had refused copies 
of official orders. In another case " the officers of the 
government screened themselves . . under the sanc- 
tion of the president's name." l The same might be 
done again; for this reason Burr applied "directly 
to the president." The choleric legal giant from 

1 Martin here refers to what hie branded as "the farcical trials of 
Ogden and Smith." In June and July, 1806, William S. Smith and 
Samuel G. Ogden of New York were tried in the United States Court 
for that district upon indictments charging them with having aided 
Miranda in his attack on Caracas, Venezuela. They made affidavit 
that the testimony of James Madison, Secretary of State, Henry 
Dearborn, Secretary of War, Robert Smith, Secretary of the Navy, 
and three clerks of the State Department, was necessary to their 
defense. Accordingly these officials were summoned to appear in 
court. They refused, but on July 8, 1806, wrote to the Judges — 
William Paterson of the Supreme Court and Matthias B. Talmadge, 
District Judge — that the President "has specially signified to us that 
our official duties cannot . . be at this juncture dispensed with." 
(Trials of Smith and Ogden: Lloyd, stenographer, 6-7.) 

The motion for an attachment to bring the secretaries and their 
clerks into court was argued for three days. The court disagreed, and 
no action therefore was taken. (lb. 7-90.) One judge (undoubtedly 
Paterson) was "of opinion, that the absent witnesses should be laid 
under a rule to show cause, why an attachment should not be issued 
against them "; the other (Talmadge) held "that neither an attach- 
ment in the first instance, nor a rule to show cause ought to be 
granted." (lb. 89.) 

Talmadge was a Republican, appointed by Jefferson, and charged 
heavily against the defendants (ib. 236-42, 287); but they were 
acquitted. 

The case was regarded as a political prosecution, and the refusal of 
Cabinet officers and department clerks to obey the summons of the 
court, together with Judge Talmadge's disagreement with Justice 
Paterson — who in disgust immediately left the bench under plea of 
ill-health (ib. 90) — and the subsequent conduct of the trial judge, were 
commented upon unfavorably. These facts led to Martin's reference 
during the Burr trial. 



ADMINISTRATION VERSUS COURT 437 

Maryland could no longer restrain his wrath: "This 
is a peculiar case," he shouted. "The president 
has undertaken to prejudice my client by declar- 
ing, that 'of his guilt there can be no doubt.' He 
has assumed to himself the knowledge of the Su- 
preme Being himself, and pretended to search the 
heart of my highly respected friend. He has pro- 
claimed him a traitor in the 'face of that country, 
which has rewarded him. He has let slip the dogs 
of war, the hell-hounds of persecution, to hunt down 
my friend." 

"And would this president of the United States, 
who has raised all this absurd clamor, pretend to 
keep back the papers which are wanted, for this trial, 
where life itself is at stake?" That was a denial of 
"a sacred principle. Whoever withholds, wilfully, 
information that would save the life of a person, 
charged with a capital offence, is substantially a 
murderer, and so recorded in the register of heaven." 
Did Jefferson want Burr convicted? Impossible 
thought! "Would the president of the United States 
give his enemies . . the proud opportunity of saying 
that colonel Burr is the victim of anger, jealousy 
and hatred?" Interspersed with these outbursts of 
vitriolic eloquence, Martin cited legal authorities. 
Never, since the days of Patrick Henry, had Rich- 
mond heard such a defiance of power. 1 

Alexander MacRae did his best to break the force 
of Martin's impetuous attack. The present ques- 
tion was "whether this court has the right to issue a 
subpoena duces tecum, addressed to the president of 

1 Burr Trials, I, 127-28. 



438 JOHN MARSHALL 

the United States." MacRae admitted that "a 
subpoena may issue against him as well as against 
any other man." Still, the President was not bound 
to disclose "confidential communications." Had not 
Marshall himself so ruled on that point in the matter 
of Attorney-General Lincoln at the hearing in Mar- 
bury vs. Madison? 1 

Botts came into the fray with his keen-edged sar- 
casm. Hay and Wirt and MacRae had " reprobated " 
the action of Chase when, in the trial of Cooper, that 
judge had refused to issue the writ now asked for; 
yet now they relied on that very precedent. " I con- 
gratulate them upon their dereliction of the old 
democratic opinions." 2 

Wirt argued long and brilliantly. What were the 
"orders," military and naval, which had been de- 
scribed so thrillingly? Merely to "apprehend Aaron 
Burr, and if . . necessary . . to destroy his boats." Even 
the "sanguinary and despotic" orders depicted 
by Burr and his counsel would have been a "great 
and glorious virtue" if Burr "was aiming a blow at 
the vitals of our government and liberty." Martin's 
"fervid language" had not been inspired merely by 
devotion to "his honourable friend," said Wirt. It 
was the continued pursuit of a "policy settled . . be- 
fore Mr. Martin came to Richmond." Burr's counsel, 
on the slightest pretext, "flew off at a tangent . . 
to launch into declamations against the government, 
exhibiting the prisoner continually as a persecuted 
patriot: a Russell or a Sidney, bleeding under the 
scourge of a despot, and dying for virtue's sake!" 

1 Burr Trials, i 130-33. 2 lb. 134-35. 



ADMINISTRATION VERSUS COURT 439 

He wished to know "what gentlemen can intend, 
expect, or hope, from these perpetual philippics 
against the government? Do they natter themselves 
that this court feel political prejudices which will 
supply the place of argument and of innocence on the 
part of the prisoner? Their conduct amounts to an 
insinuation of the sort." What would a foreigner 
"infer from hearing . . the judiciary told that the 
administration are ' blood hounds,' hunting this man 
with a keen and savage thirst for blood," and wit- 
nessing the court receive this language "with all 
complacency?" Surely no conclusion could be made 
very "honourable to the court. It would only be 
inferred, while they are thus suffered to roll and lux- 
uriate in these gross invectives against the adminis- 
tration, that they are furnishing the joys of a Ma- 
homitan paradise to the court as well as to their 
client." * 

Here was as bold a challenge to Marshall as ever 
Erskine flung in the face of judicial arrogance; and 
it had effect. Before adjourning court, Marshall 
addressed counsel and auditors: he had not inter- 
fered with assertions of counsel, made "in the heat 
of debate," although he had not approved of them. 
But now that Wirt had made "a pointed appeal" to 
the court, and the Judges "had been called upon to 
support their own dignity, by preventing the govern- 
ment from being abused," he would express his opin- 
ion. "Gentlemen on both sides had acted improp- 
erly in the style and spirit of their remarks; they had 
been to blame in endeavoring to excite the prejudices 

1 Burr Trials, i, 137-45. 



440 JOHN MARSHALL 

of the people; and had repeatedly accused each other 
of doing what they forget they have done them- 
selves." Marshall therefore "expressed a wish that 
counsel . . would confine themselves on every occa- 
sion to the point really before the court; that their 
own good sense and regard for their characters re- 
quired them to follow such a course." He "hoped 
that they would not hereafter deviate from it." 1 

His gentle admonition was scarcely heeded by the 
enraged lawyers. Wickham's very "tone of voice," 
exclaimed Hay, was "calculated to excite irritation, 
and intended for the multitude." Of course, Jeffer- 
son could be subpoenaed as a witness ; that was in the 
discretion of the court. But Marshall ought not to 
grant the writ unless justice required it. The letter 
might be "of a private nature"; if so, it ought not 
to be produced. Martin's statement that Burr had a 
right to resist was a "monstrous . . doctrine which 
would have been abhorred even in the most turbulent 
period of the French revolution, by the jacobins 
of 1794!" 

Suppose, said Hay, that Jefferson had been "mis- 
led," and that "Burr was peaceably engaged in the 
project of settling his Washita lands!" Did that 
give him "a right to resist the president's orders to 
stop him?" Never! "This would be treason." The 
assertion of the right to disobey the President was 
the offspring of "a new-born zeal of some of the 
gentlemen, in defence of the rights of man." 2 

Why await the arrival of Wilkinson? asked Ed- 
mund Randolph. What was expected of "that great 

1 Burr Trials, I, 147-48. 2 lb. 148-52. 



ADMINISTRATION VERSUS COURT 441 

accomplisher of all things?" Apparently this: "He 
is to support . . the sing-song and the ballads of 
treason and conspiracy, which we have heard deliv- 
ered from one extremity of the continent to the 
other. The funeral pile of the prosecution is already 
prepared by the hands of the public attorney, and 
nothing is wanting to kindle the fatal blaze but the 
torch of James Wilkinson," who "is to officiate as 
the high priest of this human sacrifice. . . Wilkinson 
will do many things rather than disappoint the 
wonder-seizing appetite of America, which for 
months together he has been gratifying by the most 
miraculous actions." If Burr were found guilty, 
Wilkinson would stand acquitted; if not, then "the 
character, the reputation, every thing . . will be 
gone for ever from general Wilkinson." 

Randolph's speech was a masterpiece of invective. 
"The President testifies, that Wilkinson has testi- 
fied to him fully against Burr; then let that letter be 
produced. The President's declaration of Burr's 
guilt is unconstitutional." It was not the business 
of the President "to give opinions concerning the 
guilt or innocence of any person." Directly address- 
ing Marshall, Randolph continued: "With respect 
to your exhortation," that Burr's appeal was to the 
court alone, "we demand justice only, and if you 
cannot exorcise the demon of prejudice, you can 
chain him down to law and reason, and then we shall 
have nothing to fear." l 

The audacious Martin respected Marshall's appeal 
to counsel even less than Hay and Randolph had 

1 Burr Trials, i, 153-64. 



442 JOHN MARSHALL 

done. The prosecution had objected to the produc- 
tion of Wilkinson's mysterious letter to Jefferson 
because it might contain confidential statements. 
"What, sir," he shouted, "shall the cabinet of the 
United States be converted into a lion's mouth of 
Venice, or into a repertorium of the inquisition? 
Shall envy, hatred, and all the malignant passions 
pour their poison into that cabinet against the char- 
acter and life of a fellow citizen, and yet that cabinet 
not be examined in vindication of that character and 
to protect that life? " 

Genuine fury shook Martin. " Is the life of a man, 
lately in high public esteem . . to be endangered for 
the sake of punctilio to the president?" Obey ille- 
gal orders! "If every order, however arbitrary and 
unjust, is to be obeyed, we are slaves as much as 
the inhabitants of Turkey. If the presidential edicts 
are to be the supreme law, and the officers of the 
government have but to register them, as formerly 
in France, . . we are as subject to despotism, as . . 
the subjects of the former 'Grands Monarques.'" l 

Now occurred as strange a mingling of acrimony 
and learning as ever enlightened and enlivened a 
court. Burr's counsel demanded that Marshall de- 
liver a supplementary charge to the grand jury. 
Marshall was magnificently cautious. He would, he 
said, instruct the jury as confused questions arose. 
On further reflection and argument — Marshall's 
dearly beloved argument — he wrote additional in- 
structions, 2 but would not at present announce them. 
There must be an actual "levying of war"; the overt 

1 Burr Trials, i, 164-67. 2 lb. 173-76. 



ADMINISTRATION VERSUS COURT 443 

act must be established; no matter what suspicions 
were entertained, what plans had been formed, what 
enterprises had been projected, there could be "no 
treason without an overt act." 1 

In such would-and-would-not fashion Marshall 
contrived to waive this issue for the time being. 
Then he delivered that opinion which proved his 
courage, divided Republicans, stirred all America, 
and furnished a theme of disputation that remains 
fresh to the present day. He decided to grant Burr's 
demand that Jefferson be called into court with the 
papers asked for. 

The purpose of the motion was, said Marshall, to 
produce copies of the army and navy orders for the 
seizure of Burr, the original of Wilkinson's letter to 
Jefferson, and the President's answer. To accom- 
plish this object legally, Burr had applied for the 
well-known subpoena duces tecum directed to the 
President of the United States. 

The objection that until the grand jury had in- 
dicted Burr, no process could issue to aid him to 
obtain testimony, was, Marshall would not say new 
elsewhere, but certainly it had never before been 
heard of in Virginia. " So far back as any knowledge 
of our jurisprudence is possessed, the uniform practice 
of this country [Virginia] has been, to permit any 
individual . . charged with any crime, to prepare for 
his defence and to obtain the process of the court, for 
the purpose of enabling him so to do." An accused 
person must expect indictment, and has a right to 
compel the attendance of witnesses to meet it. It 

1 Burr Trials, i, 177. 



444 JOHN MARSHALL 

was perhaps his duty to exercise that right: "The 
genius and character of our laws and usages are 
friendly, not to condemnation at all events, but to a 
fair and impartial trial." 

In all criminal prosecutions the Constitution, 
Marshall pointed out, guarantees to the prisoner "a 
speedy and public trial, and to compulsory process 
for obtaining witnesses in his favour." The courts 
must hold this "sacred," must construe it "to be 
something more than a dead letter." Moreover, the 
act of Congress undoubtedly contemplated "that, 
in all capital cases, the accused shall be entitled to 
process before indictment found." Thus "immemo- 
rial usage," the language of the Constitution, the 
National statute, all combined to give "any person, 
charged with a crime in the courts of the United 
States, . . a right, before, as well as after indictment, 
to the process of the court to compel the attendance 
of his witnesses." 

But could " a subpoena duces tecum be directed to the 
president of the United States?" If it could, ought 
it to be "in this case"? Neither in the Constitution 
nor in an act of Congress is there any exception 
whatever to the right given all persons charged with 
crime to compel the attendance of witnesses. "No 
person could claim an exemption." True, in Great 
Britain it was considered "to be incompatible with 
his dignity " for the King " to appear under the proc- 
ess of the court." But did this apply to the Presi- 
dent of the United States? Marshall stated the many 
differences between the status of the British King 
and that of the American President. 



ADMINISTRATION VERSUS COURT 445 

The only possible ground for exempting the Presi- 
dent "from the general provisions of the constitu- 
tion" would be, of course, that "his duties . . de- 
mand his whole time for national objects. But," con- 
tinued Marshall, "it is apparent, that this demand is 
not unremitting" — a statement at which Jefferson 
took particular offense. 1 Should the President be so 
occupied when his presence in court is required, "it 
would be sworn on the return of the subpoena, and 
would rather constitute a reason for not obeying the 
process of the court, than a reason against its being 
issued." 

To be sure, any court would "much more cheer- 
fully" dispense with the duty of issuing a subpoena 
to the President than to perform that duty; "but, 
if it be a duty, the court can have no choice" but to 
perform it. 

If, "as is admitted by counsel for the United 
States," the President may be "summoned to give 
his personal attendance to testify," was that power 
nullified because "his testimony depends on a paper 
in his possession, not on facts which have come to 
his knowledge otherwise than by writing?" Such a 
distinction is "too much attenuated to be coun- 
tenanced in the tribunals of a just and humane na- 
tion." 2 The character of the paper desired as evi- 
dence, and not "the character of the person who 
holds it," determines "the propriety of introducing 
any paper . . as testimony." 

It followed, then, that "a subpoena duces tecum may 
issue to any person to whom an ordinary subpoena 
1 See infra, 455-56. 2 Burr Trials, i, 181-83. 



446 JOHN MARSHALL 

may issue." The only difference between the two 
writs is that one requires only the attendance of the 
witness, while the other directs also "bringing with 
him a paper in his custody." 

In many States the process of subpoena duces 
tecum issues of course, and without any action of the 
judge. In Virginia, however, leave of the court is 
required; but "no case exists . . in which the mo- 
tion . . has been denied or in which it has been 
opposed," when "founded on an affidavit." 

The Chief Justice declared that he would not issue 
the writ if it were apparent that the object of the 
accused in applying for it was "not really in his own 
defence, but for purposes which the court ought to 
discountenance. The court would not lend its aid to 
motions obviously designed to manifest disrespect to 
the government; but the court has no right to refuse 
its aid to motions for papers to which the accused 
may be entitled, and which may be material in his 
defence." If this was true in the matter of Burr's 
application, "would it not be a blot in the page, 
which records the judicial proceedings of this coun- 
try, if, in a case of such serious import as this, the 
accused should be denied the use" of papers on 
which his life might depend? 

Marshall carefully examined a case cited by the 
Government 1 in which Justice Paterson had pre- 
sided, at the same time paying to the memory of 
the deceased jurist a tribute of esteem and affection. 
He answered with tedious particularity the objec- 
tions to the production of Wilkinson's letter to Jeffer- 

1 United States vs. Smith and Ogden. (See supra, 436, foot-note.) 



ADMINISTRATION VERSUS COURT 447 

son, and then referred to the "disrespect" which the 
Government counsel had asserted would be shown 
to the President if Marshall should order him to 
appear in court with the letters and orders. 

"This court feels many, perhaps peculiar motives, 
for manifesting as guarded respect for the chief 
magistrate of the Union as is compatible with its 
official duties." But, declared Marshall, "to go 
beyond these . . would deserve some other appella- 
tion than the term respect." 

If the prosecution should end, "as is expected'' by 
the Government, those who withheld from Burr any 
paper necessary to his defense would, of course, bit- 
terly regret their conduct. "I will not say, that this 
circumstance would . . tarnish the reputation of the 
Government; but I will say, that it would justly 
tarnish the reputation of the court, which had given 
its sanction to its being withheld." 

With all that impressiveness of voice and manner 
which, on occasion, so transformed Marshall, he 
exclaimed: "Might I be permitted to utter one senti- 
ment, with respect to myself, it would be to deplore, 
most earnestly, the occasion which should compel 
me to look back on any part of my official conduct 
with so much self-reproach as I should feel, could I 
declare, on the information now possessed, that the 
accused is not entitled to the letter in question, if 
it should be really important to him." 

Let a subpoena duces tecum, therefore ruled the 
Chief Justice, be issued, directed to Thomas Jeffer- 
son, President of the United States. 1 

1 Burr Trials, i, 187-88. 



448 JOHN MARSHALL 

Nothing that Marshall had before said or done so 
highly excited counsel for the prosecution as his 
assertion that they "expected" Burr's conviction. 
The auditors were almost as deeply stirred. Con- 
sidering the peculiarly mild nature of the man and 
his habitual self-restraint, Marshall's language was 
a pointed rebuke, not only to the Government's 
attorneys, but to the Administration itself. Even 
Marshall's friends thought that he had gone too far. 

Instantly MacRae was on his feet. He resented 
Marshall's phrase, and denied that the Government 
or its counsel "wished" the conviction of Burr — 
such a desire was "completely abhorrent to [their] 
feelings." MacRae hoped that Marshall did not 
express such an opinion deliberately, but that it had 
"accidentally fallen from the pen of [his] honor." 

Marshall answered that he did not intend to 
charge the Administration or its attorneys with a 
desire to convict Burr "whether he was guilty or 
innocent"; but, he added dryly, "gentlemen had so 
often, and so uniformly asserted, that colonel Burr 
was guilty, and they had so often repeated it before 
the testimony was perceived, on which that guilt 
could alone be substantiated, that it appeared to 
him probable, that they were not indifferent on the 
subject." x 

Hay, in his report to Jefferson, gave more space 
to this incident than he did to all other features of 
the case. He told the President that Marshall had 
issued the dreaded process and then quoted the 
offensive sentence. "This expression," he relates, 

1 Burr Trials, L 189. 



ADMINISTRATION VERSUS COURT 449 

"produced a very strong & very general sensation. 
The friends of the Judge, both personal & political, 
Condemned it. Alex? M c Rae rose as soon as he had 
finished, and in terms mild yet determined, de- 
manded an explanation of it. The Judge actually 
blushed." And, triumphantly continues the District 
Attorney, "he did attempt an explanation. . . I ob- 
served, with an indifference which was not assumed, 
that I had endeavored to do my duty, according to 
my own judgment and feelings, that I regretted 
nothing that I had said or done, that I should pur- 
sue the same Course throughout, and that it was a 
truth, that I cared not what any man said or thought 
about it." 

Marshall himself was perturbed. "About three 
hours afterwards," Hay tells Jefferson, "when the 
Crowd was thinned, the Judge acknowledged the 
impropriety of the expression objected to, & in- 
formed us from the Bench that he had erased it." 
The Chief Justice even apologized to the wrathful 
Hay: "After he had adjourned the Court, he de- 
scended from the Bench, and told me that he re- 
gretted the remark, and then by way of apology 
said, that he had been so pressed for time, that he 
had never read the opinion, after he had written it." 
Hay loftily adds: "An observation from me that I 
did not perceive any connection between my declara- 
tions & his remark, or how the former could regularly 
be the Cause of the latter, closed the Conversation." l 

Hay despondently goes on to say that "there 
never was such a trial from the beginning of the 

1 Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong. 



450 JOHN MARSHALL 

world to this day." And what should he do about 
Bollmann? That wretch "resolutely refuses his 
pardon & is determined not to utter a word, if he can 
avoid it. The pardon lies on the clerks table. The 
Court are to decide whether he is really pardoned or 
not. Martin says he is not pardoned. Such are the 
questions, with which we are worried. If the Judge 
says that he is not pardoned, I will take the pardon 
back. What shall I then do with him?" 

The immediate effect of Marshall's ruling was the 
one Jefferson most dreaded. For the first time, most 
Republicans approved of the opinion of John Mar- 
shall. In the fanatical politics of the time there was 
enough of honest adherence to the American ideal, 
that all men are equal in the eyes of the law, to jus- 
tify the calling of a President, even Thomas Jefferson, 
before a court of justice. 

Such a militant Republican and devotee of Jef- 
ferson as Thomas Ritchie, editor of the Richmond 
Enquirer, the party organ in Virginia, did not crit- 
icize Marshall, nor did a single adverse comment on 
Marshall appear in that paper during the remainder 
of the trial. Not till the final verdict was rendered 
did Ritchie condemn him. 1 

Before he learned of Marshall's ruling, Jefferson 
had once more written the District Attorney giving 
him well-stated arguments against the issuance of 
the dreaded subpoena. 2 When he did receive the 
doleful tidings, Jefferson's anger blazed — but this 
time chiefly at Luther Martin, who was, he wrote, 

1 Ambler: Thomas Ritchie — A Study in Virginia Politics, 40-4 J - 

2 Jefferson to Hay, June 17, 1807, Works: Ford, x, 400-01. 



ADMINISTRATION VERSUS COURT 451 

an "unprincipled & impudent federal bull-dog." 
But there was a way open to dispose of him : Martin 
had known all about Burr's criminal enterprise. 
Jefferson had received a letter from Baltimore stat- 
ing that this had been believed generally in that city 
"for more than a twelve-mouth." Let Hay sub- 
poena as a witness the writer of this letter — one 
Grey bell. 

Something must be done to "put down" the 
troublesome "bull-dog": "Shall L M be summoned 
as a witness against Burr?" Or "shall we move to 
commit L M as particeps criminis with Burr? Grey- 
bell will fix upon him misprision of treason at least 
. . and add another proof that the most clamorous 
defenders of Burr are all his accomplices." 

As for Bollmann! "If [he] finally rejects his par- 
don, & the Judge decides it to have no effect . . 
move to commit him immediately for treason or 
misdemeanor." 1 But Bollmann, in open court, had 
refused Jefferson's pardon six days before the Presi- 
dent's vindictively emotional letter was written. 

After Marshall delivered his opinion on the ques- 
tion of the subpoena to Jefferson, Burr insisted, in 
an argument as convincing as it was brief, that the 
Chief Justice should now deliver the supplementary 
charge to the grand jury as to what evidence it could 
legally consider. Marshall announced that he would 
do so on the following Monday. 2 

Several witnesses for the Government were sworn, 
among them Commodore Thomas Truxtun, Com- 

1 Jefferson to Hay, June 19, 1807, Works: Ford, x, 402-03. 

2 Butt Trials, i, 190. 



452 JOHN MARSHALL 

modore Stephen Decatur, and "General" William 
Eaton. When Dr. Erich Bollmann was called to the 
book, Hay stopped the administration of the oath. 
Bollmann had told the Government all about Burr's 
"plans, designs and views," said the District Attor- 
ney; "as these communications might criminate 
doctor Bollman before the grand jury, the presi- 
dent has communicated to me this pardon" — and 
Hay held out the shameful document. He had al- 
ready offered it to Bollmann, he informed Marshall, 
but that incomprehensible person would neither 
accept nor reject it. His evidence was "extremely 
material"; the pardon would "completely exonerate 
him from all the penalties of the law." And so, ex- 
claimed Hay, "in the presence of this court, I offer 
this pardon to him, and if he refuses, I shall deposit 
it with the clerk for his use." Then turning to Boll- 
mann, Hay dramatically asked: 

" Will you accept this pardon?" 

"No, I will not, sir," firmly answered Bollmann. 

Then, said Hay, the witness must be sent to the 
grand jury "with an intimation, that he has been 
pardoned." 

"It has always been doctor Bollman's intention 
to refuse this pardon," broke in Luther Martin. 
He had not done so before only "because he wished 
to have this opportunity of publicly rejecting it." 

Witness after witness was sworn and sent to the 
grand jury, Hay and Martin quarreling over the 
effect of Jefferson's pardon of Bollmann. Marshall 
said that it would be better "to settle . . the validity 
of the pardon before he was sent to the grand jury." 



ADMINISTRATION VERSUS COURT 453 

Again Hay offered Bollmann the offensive guarantee 
of immunity; again it was refused; again Martin 
protested. 

"Are you then willing to hear doctor Bollman 
indicted?" asked Hay, white with anger. "Take 
care," he theatrically cried to Martin, "in what an 
awful condition you are placing this gentleman." 

Bollmann could not be frightened, retorted Mar- 
tin: "He is a man of too much honour to trust his 
reputation to the course which you prescribe for 
him." 

Marshall "would perceive," volunteered the non- 
plussed and exasperated Hay, "that doctor Boll- 
man now possessed so much zeal, as even to encoun- 
ter the risk of an indictment for treason." 

The Chief Justice announced that he could not, 
"at present, declare, whether he be really par- 
doned or not." He must, he said, "take time to de- 
liberate." 

Hay persisted: "Categorically then I ask you, Mr. 
Bollman, do you accept your pardon?" 

"I have already answered that question several 
times. I say no," responded Bollmann. "I repeat, 
that I would have refused it before, but that I 
wished this opportunity of publicly declaring it." 1 

Bollmann was represented by an attorney of his 
own, a Mr. Williams, who now cited an immense 
array of authorities on the various questions in- 
volved. Counsel on both sides entered into the dis- 
cussion. One "reason why doctor Bollman has re- 
fused this pardon" was, said Martin, "that it would 
1 Burr Trials, i, 191-93. 



454 JOHN MARSHALL 

be considered as an admission of guilt" But 
"doctor Bollman does not admit that he has been 
guilty. He does not consider a pardon as necessary 
for an innocent man. Doctor Bollman, sir, knows 
what he has to fear from the persecution of an angry 
government; but he will brave it all." 

Yes ! cried Martin, with immense effect on the ex- 
cited spectators, "the man, who did so much to res- 
cue the marquis la Fayette from his imprisonment, 
and who has been known at so many courts, bears 
too great a regard for his reputation, to wish to have 
it sounded throughout Europe, that he was com- 
pelled to abandon his honour through a fear of un- 
just persecution." Finally the true-hearted and de- 
fiant Bollmann was sent to the grand jury without 
having accepted the pardon, and without the legal 
effect of its offer having been decided. 1 

When the Richmond Enquirer, containing Mar- 
shall's opinion on the issuance of the subpoena duces 
tecum, reached Washington, the President wrote to 
Hay an answer of great ability, in which Jefferson 
the lawyer shines brilliantly forth: "As is usual 
where an opinion is to be supported, right or wrong, 
he [Marshall] dwells much on smaller objections, 
and passes over those which are solid. . . He admits 
no exception" to the rule "that all persons owe 
obedience to subpoenas . . unless it can be produced 
in his law books." 

"But," argues Jefferson, "if the Constitution en- 
joins on a particular officer to be always engaged in 
a particular set of duties imposed on him, does not 
1 Burr Trials, i, 193-96. 



ADMINISTRATION VERSUS COURT 455 

this supersede the general law, subjecting him to 
minor duties inconsistent with these? The Constitu- 
tion enjoins his [the President's] constant agency 
in the concerns of 6. millions of people. Is the law 
paramount to this, which calls on him on behalf of 
a single one?" 

Let Marshall smoke his own tobacco : suppose the 
Sheriff of Henrico County should summon the Chief 
Justice to help " quell a riot " ? Under the "gen- 
eral law" he is "a part of the fosse of the State 
sheriff"; yet, "would the Judge abandon major 
duties to perform lesser ones?" Or, imagine that a 
court in the most distant territory of the United 
States "commands, by subpoenas, the attendance of 
all the judges of the Supreme Court. Would they 
abandon their posts as judges, and the interests of 
millions committed to them, to serve the purposes 
of a single individual?" 

The Judiciary was incessantly proclaiming its 
"independence," and asserting that "the leading 
principle of our Constitution is the independence 
of the Legislature, executive and judiciary of each 
other." But where would be such independence, if 
the President "were subject to the commands of the 
latter, & to imprisonment for disobedience; if the 
several courts could bandy him from pillar to post, 
keep him constantly trudging from north to south 
& east to west, and withdraw him entirely from his 
constitutional duties?" 

Jefferson vigorously resented Marshall's personal 
reference to him. "If he alludes to our annual re- 
tirement from the seat of government, during the 



456 JOHN MARSHALL 

sickly season," Hay ought to tell Marshall that 
Jefferson carried on his Executive duties at Mon- 
ticello. 1 

Crowded with sensations as the proceedings had 
been from the first, they now reached a stage of thrill- 
ing movement and high color. The long-awaited and 
much-discussed Wilkinson had at last arrived "with 
ten witnesses, eight of them Burr's select men," as 
Hay gleefully reported to Jefferson. 2 Fully attired 
in the showy uniform of the period, to the last item 
of martial decoration, the fat, pompous Command- 
ing General of the American armies strode through 
the crowded streets of Richmond and made his way 
among the awed and gaping throng to his seat by 
the side of the Government's attorneys. 

Washington Irving reports that "Wilkinson strut- 
ted into the Court, and . . stood for a moment 
swelling like a turkey cock." Burr ignored him 
until Marshall "directed the clerk to swear General 
Wilkinson; at the mention of the name Burr turned 
his head, looked him full in the face with one of his 
piercing regards, swept his eye over his whole person 
from head to foot, as if to scan its dimensions, and 

1 Jefferson to Hay, June 20, 1807, Works: Ford, x, 403-05. 

2 Hay to Jefferson, June 11, 1807, Jefferson MSS. Lib. Cong. This 
letter announced Wilkinson's landing at Hampton Roads. 

Wilkinson reached Richmond by stage on Saturday, June 13. He 
was accompanied by John Graham and Captain Gaines, the ordinary 
witnesses having been sent ahead on a pilot boat. (Graham to Mad- 
ison, May 11, 1807, " Letters in Relation," MSS. Lib. Cong.) Graham 
incorrectly dated his letter May 11 instead of June 11. He had left 
New Orleans in May, and in the excitement of landing had evidently 
forgotten that a new month had come. 

W 7 ilkinson was " too much fatigued " to come into court. (Burr 
Trials, i, 196.) By Monday, however, he was sufficiently restored U 
present himself before Marshall. 



ADMINISTRATION VERSUS COURT 457 

then coolly . . went on conversing with his counsel 
as tranquilly as ever." 1 

Wilkinson delighted Jefferson with a different de- 
scription: "I saluted the Bench & in spite of myself 
my Eyes darted a flash of indignation at the little 
Traitor, on whom they continued fixed until I 
was called to the Book- here Sir I found my expec- 
tations verified- This Lyon hearted Eagle Eyed 
Hero, sinking under the weight of conscious guilt, 
with haggard Eye, made an Effort to meet the indig- 
nant salutation of outraged Honor, but it was in vain, 
his audacity failed Him, He averted his face, grew 
pale & affected passion to conceal his perturbation." 2 

But the countenance of a thin, long-faced, roughly 
garbed man sitting among the waiting witnesses was 
not composed when Wilkinson appeared. For three 
weeks Andrew Jackson to all whom he met had been 
expressing his opinion of Wilkinson in the unre- 
strained language of the fighting frontiersman; 3 and 
he now fiercely gazed upon the creature whom he 
regarded as a triple traitor, his own face furious with 
scorn and loathing. 

Within the bar also sat that brave and noble 

1 Irving to Paulding, June 22, 1807, Irving, I, 145. 

2 Wilkinson to Jefferson, June 17, 1807, "Letters in Relation," 
MSS. Lib. Cong. 

The court reporter impartially states that Wilkinson was "calm, 
dignified, and commanding," and that Burr glanced at him with 
"haughty contempt." (Burr Trials, I, footnote to 197.) 

3 "Gen: Jackson of Tennessee has been here ever since the 22 ^ 
[of May] denouncing Wilkinson in the coarsest terms in every com- 
pany." (Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.) 

Hay had not the courage to tell the President that Jackson had been 
as savagely unsparing in his attacks on Jefferson as in his thoroughly 
justified condemnation of Wilkinson. 



458 JOHN MARSHALL 

man whose career of unbroken victories had made 
the most brilliant and honorable page thus far in 
the record of the American Navy — Commodore 
Thomas Truxtun. He was dressed in civilian attire. 1 
By his side, clad as a man of business, sat a brother 
naval hero of the old days, Commodore Stephen De- 
catur. 2 A third of the group was Benjamin Stoddert, 
the Secretary of the Navy under President Adams. 3 

1 Truxtun left the Navy in 1802, and, at the time of the Burr trial, 
was living on a farm in New Jersey. No officer in any navy ever made 
a better record for gallantry, seamanship, and whole-hearted devotion 
to his country. The list of his successful engagements is amazing, he 
was as high-spirited as he was fearless and honorable. 

In 1802, when in command of the squadron that was being equipped 
for our war with Tripoli, Truxtun most properly asked that a captain 
be appointed to command the flagship. The Navy was in great dis- 
favor with Jefferson and the whole Republican Party, and naval affairs 
were sadly mismanaged or neglected. Truxtun's reasonable request 
was refused by the Administration, and he wrote a letter of indignant 
protest to the Secretary of the Navy. To the surprise and dismay of 
the experienced and competent officer, Jefferson and his Cabinet con- 
strued his spirited letter as a resignation from the service, and, against 
Truxtun's wishes, accepted it as such. Thus the American Navy 
lost one of its ablest officers at the very height of his powers. Truxtun 
at the time was fifty-two years old. No single act of Jefferson's 
Administration is more discreditable than this untimely ending of a 
great career. 

2 This man was the elder Decatur, father of the more famous officer 
of the same name. He had had a career in the American Navy as 
honorable but not so distinguished as that of Truxtun; and his service 
had been ended by an unhappy circumstance, but one less humiliating 
than that which severed Truxtun's connection with the Navy. 

The unworthiest act of the expiring Federalist Congress of 1801, 
and one which all Republicans eagerly supported, was that authoriz- 
ing most of the ships of the Navy to be sold or laid up and most of the 
naval officers discharged. (Act of March 3, 1801, Annals, 6th Cong. 
1st and 2d Sess. 1557-59.) Among the men whose life profession was 
thus cut off, and whose notable services to their country were thus 
rewarded, was Commodore Stephen Decatur, who thereafter en- 
gaged in business in Philadelphia. 

3 It was under Stoddert's administration of the Navy Department 
that the American Navy was really created. Both Truxtun and 
Decatur won their greatest sea battles in our naval war with France. 



ADMINISTRATION VERSUS COURT 459 

In striking contrast with the dignified appearance 
and modest deportment of these gray-haired friends 
was the gaudily appareled, aggressive mannered 
Eaton, his restlessness and his complexion advertis- 
ing those excesses which were already disgusting 
even the hard-drinking men then gathered in Rich- 
mond. Dozens of inconspicuous witnesses found 
humbler places in the audience, among them Ser- 
geant Jacob Dunbaugh, bearing himself with mingled 
bravado, insolence, and humility, the stripes on the 
sleeve of his uniform designating the position to which 
Wilkinson had restored him. 

Dunbaugh had gone before the grand jury on 
Saturday, as had Boilmann; and now, one by one, 
Truxtun, Decatur, Eaton, and others were sent to 
testify before that body. 

Eaton told the grand jury the same tale related in 
his now famous affidavit. 1 

Commodore Truxtun testified to facts as different 
from the statements made by "the hero of Derne" 2 
as though Burr had been two utterly contrasted per- 
sons. During the same period that Burr had seen 
Eaton, he had also conversed with him, said Truxtun. 
Burr mentioned a great Western land speculation, 
the digging of a canal, and the building of a bridge. 
Later on Burr had told him that "in the event of a 

while Stoddert was Secretary. The three men were close friends and 
all of them warmly resented the demolition of the Navy and highly 
disapproved of Jefferson, both as an individual and as a statesman. 
They belonged to the old school of Federalists. Three more upright 
men did not live. 

1 See supra, 304-05. 

2 A popular designation of Eaton after his picturesque and heroic 
Moroccan exploit. 



460 JOHN MARSHALL 

war with Spain, which he thought inevitable, . . he 
contemplated an expedition to Mexico," and had 
asked Truxtun "if the Havanna could be easily 
taken . . and what would be the best mode of at- 
tacking Carthagena and La Vera Cruz by land and 
sea." The Commodore had given Burr his opinion 
"very freely," part of it being that "it would re- 
quire a naval force." Burr had answered that " that 
might be obtained," and had frankly asked Trux- 
tun if he "would take the command of a naval ex- 
pedition." 

"I asked him," testified Truxtun, "if the execu- 
tive of the United States were privy to, or concerned 
in the project? He answered emphatically that he 
was not : . . I told Mr. Burr that I would have noth- 
ing to do with it. . . He observed to me, that in the 
event of a war [with Spain], he intended to establish 
an independent government in Mexico; that Wil- 
kinson, the army, and many officers of the navy 
would join. . . Wilkinson had projected the expe- 
dition, and he had matured it; that many greater 
men than Wilkinson would join, and that thousands 
to the westward would join." 

In some of the conversations "Burr mentioned to 
me that the government was weak," testified Trux- 
tun, "and he wished me to get the navy of the United 
States out of my head; l . . and not to think more of 
those men at Washington; that he wished to see or 

1 Truxtun at the time of his conversations with Burr was in 
the thick of that despair over his cruel and unjustifiable separation 
from the Navy, which clouded his whole after life. The longing to 
be once more on the quarter-deck of an American warship never left 
his heart. 



ADMINISTRATION VERSUS COURT 461 

make me, (I do not recollect which of those two 
terms he used) an Admiral." 

Burr wished Truxtun to write to Wilkinson, to 
whom he was about to dispatch couriers, but Trux- 
tun declined, as he "had no subject to write about." 
Again Burr urged Truxtun to join the enterprise — 
"several officers would be pleased at being put under 
my command. . . The expedition could not fail — 
the Mexicans were ripe for revolt." Burr "was 
sanguine there would be war," but "if he was dis- 
appointed as to the event of war, he was about to 
complete a contract for a large quantity of land on 
the Washita; that he intended to invite his friends 
to settle it ; that in one year he would have a thousand 
families of respectable and fashionable people, and 
some of them of considerable property; that it was 
a fine country, and that they would have a charming 
society, and in two years he would have doubled the 
number of settlers; and being on the frontier, he 
would be ready to move whenever a war took 
place. . . 

"All his conversations respecting military and 
naval subjects, and the Mexican expedition, were 
in the event of a war with Spain." Truxtun testified 
that he and Burr were "very intimate"; that Burr 
talked to him with "no reserve"; and that he "never 
heard [Burr] speak of a division of the union." 

Burr had shown Truxtun the plan of a "kind of 
boat that plies between Paulus-Hook and New- 
York," and had asked whether such craft would 
do for the Mississippi River and its tributaries, es- 
pecially on voyages upstream. Truxtun had said 



462 JOHN MARSHALL 

they would. Burr had asked him to give the plans 
to "a naval constructor to make several copies," and 
Truxtun had done so. Burr explained that "he in- 
tended those boats for the conveyance of agricul- 
tural products to market at New-Orleans, and in the 
event of war [with Spain], for transports." 

The Commodore testified that Burr made no 
proposition to invade Mexico "whether there was 
war [with Spain] or not." He was so sure that Burr 
meant to settle the Washita lands that he was 
"astonished" at the newspaper accounts of Burr's 
treasonable designs after he had gone to the Western 
country for the second time. 

Truxtun had freely complained of what amounted 
to his discharge from the Navy, being "pretty full" 
himself of "resentment against the Government," 
and Burr "joined [him] in opinion" on the Admin- 
istration. 1 

Jacob Dunbaugh told a weird tale. At Fort 
Massac he had been under Captain Bissel and in 
touch with Burr. His superior officer had granted 
him a furlough to accompany Burr for twenty days. 
Before leaving, Captain Bissel had "sent for [Dun- 
baugh] to his quarters," told him to keep "any se- 
crets" Burr had confided to him, and "advised" him 
"never to forsake Col. Burr"; and "at the same 
time he made [Dunbaugh] a present of a silver breast 
plate." 

After Dunbaugh had joined the expedition, Burr 
had tried to persuade him to get "ten or twelve 

1 Burr Trials, I, 486-91. This abstract is from the testimony given 
by Commodore Truxtun before the trial jury, which was substantially 
the same as that before the grand jury. 



ADMINISTRATION VERSUS COURT 463 

of the best men" among his nineteen fellow sol- 
diers then at Chickasaw Bluffs to desert and join 
the expedition; but the virtuous sergeant had re- 
fused. Then Burr had asked him to "steal from the 
garrison arms such as muskets, fusees and rifles," 
but Dunbaugh had also declined this reasonable 
request. As soon as Burr learned of Wilkinson's 
action, he told Dunbaugh to come ashore with him 
urmed " with a rifle," and to "conceal a bayonet under 
[his] clothes. . . He told me he was going to tell me 
something I must never relate again, . . that Gen- 
eral Wilkinson had betrayed him . . that he had 
played the devil with him, and had proved the 
greatest traitor on the earth." 

Just before the militia broke up the expedition, 
Burr and Wylie, his secretary, got "an axe, augei 
and saw," and "went into Colonel Burr's private 
room and began to chop," Burr first having "or- 
dered no person to go out." Dunbaugh did go out, 
however, and "got on the top of the boat." When 
the chopping ceased, he saw that "a Mr. Pryor and 
a Mr. Tooly got out of the window," and "saw two 
bundles of arms tied up with cords, and sunk by 
cords going through the holes at the gunwales of 
Colonel Burr's boat." The vigilant Dunbaugh also 
saw "about forty or forty-three stands [of arms], 
besides pistols, swords, blunderbusses, fusees, and 
tomahawks"; and there were bayonets too. 1 

Next Wilkinson detailed to the grand jury the 
revelations he had made to Jefferson. He produced 
Burr's cipher letter to him, and was forced to admit 

1 Annals, 10th Cong. 1st Sess. 452-03. See note 1, next page. 



464 JOHN MARSHALL 

that he had left out the opening sentence of it — 
"Yours, postmarked 13th of May, is received" — « 
and that he had erased some words of it and substi- 
tuted others. He recounted the alarming disclosures 
he had so cunningly extracted from Burr's messen- 
ger, and enlarged upon the heroic measures he had 
taken to crush treason and capture traitors. For 
four days x Wilkinson held forth, and himself es- 
caped indictment by the narrow margin of 7 to 9 of 
the sixteen grand jurymen. All the jurymen, how- 
ever, appear to have believed him to be a scoundrel. 2 
"The mammoth of iniquity escaped," wrote John 
Randolph in acrid disgust, "not that any man pre- 
tended to think him innocent, but upon certain wire- 
drawn distinctions that I will not pester you with. 
Wilkinson is the only man I ever saw who was from 
the bark to the very core a villain. . . Perhaps you 
never saw human nature in so degraded a situation 
as in the person of Wilkinson before the grand jury, 
and yet this man stands on the very summit and 
pinnacle of executive favor." 3 

1 Wilkinson's testimony on the trial for misdemeanor (Annals, 
10th Cong. 1st Sess, 520-22) was the same as before the grand jury. 

"Wilkinson is now before the grand jury, and has such a mighty 
mass of words to deliver himself of, that he claims at least two days 
more to discharge the wondrous cargo.'" (Irving to Paulding, June 22, 
1807, Irving, i, 145.) 

2 See McCaleb, 335. Politics alone saved Wilkinson. The trial was 
universally considered a party matter, Jefferson's prestige, especially, 
being at stake. Yet seven out of the sixteen members of the grand 
jury voted to indict Wilkinson. Fourteen of the jury were Republi- 
cans, and two were Federalists. 

• 3 Randolph to Nicholson, June 25, u 1807, Adams: Randolph, 221- 
22. Speaking of political conditions at that time, Randolph observed: 
"Politics have usurped the place of law, and the scenes of 1798 [re- 
ferring to the Alien and Sedition laws] are again revived." 



ADMINISTRATION VERSUS COURT 465 

Samuel Swartwout, the courier who had delivered 
Burr's ill-fated letter, "most positively denied" that 
he had made the revelations which Wilkinson 
claimed to have drawn from him. 1 The youthful 
Swartwout as deeply impressed the grand jury with 
his honesty and truthfulness as Wilkinson impressed 
that body with his untrust worthiness and duplicity. 3 

Peter Taylor and Jacob Allbright then recounted 
:heir experiences. 3 And the Morgans told of Burr's 
visit and of their inferences from his mysterious tones 
of voice, glances of eye, and cryptic expressions. So 
it was, that in spite of overwhelming testimony of 
other witnesses, 4 who swore that Burr's purposes 
were to settle the Washita lands and in the event of 
war with Spain, and only in that event, to invade 
Mexico, with never an intimation of any project 
hostile to the United States — so it was that bills of 
indictment for treason and for misdemeanor were, 
on June 24, found against Aaron Burr of New York 
and Harman Blennerhassett of Virginia. The in- 
dictment for treason charged that on December 13, 
1806, at Blennerhassett 's island in Virginia, they 

1 Testimony of Joseph C. Cabell, one of the grand jury. {Annals, 
10th Cong. 1st Sess. 677.) 

2 "Mr. Swartwout . . discovered the utmost frankness and candor 
in his evidence. . . The very frank and candid manner in which he gave 
his testimony, I must confess, raised him very high in my estimation, 
and induced me to form a very different opinion of him from that 
which I had before entertained." (Testimony of Littleton W. Taze- 
well, one of the grand jury, Annals, 10th Cong. 1st Sess. 633.) 

"The manner of Mr. Swartwout was certainly that of conscious 
innocence." (Testimony of Joseph C. Cabell, one of the grand jury, 
ib. 677.) 

3 See supra, 426-27. 

4 Forty-eight witnesses were examined by the grand jury. The 
names are given in Brady : Trial of Aaron Burr, 6&-70. 



466 JOHN MARSHALL 

had levied war on the United States; and the one for 
misdemeanor alleged that, at the same time and 
place, they had set on foot an armed expedition 
against territory belonging to His Catholic Majesty, 
Charles IV of Spain. 1 

This result of the grand jury's investigations was 
reached because of that body's misunderstanding of 
Marshall's charge and of his opinion in the Bollmann 
and Swartwout case. 2 

John Randolph, as foreman of the grand jury, his 
nose close to the ground on the scent of the principal 
culprit, came into court the day after the indictment 
of Burr and Blennerhassett and asked for the letter 
from Wilkinson to Burr, referred to in Burr's cipher 
dispatch to Wilkinson, and now in the possession of 
the accused. Randolph said that, of course, the 
grand jury could not ask Burr to appear before 
them as a witness, but that they did want the letter. 

Marshall declared "that the grand jury were 
perfectly right in the opinion." Burr said that he 
could not reveal a confidential communication, un- 

1 Burr Trials, i, 305-06; also " Bills of Indictment," MSS. Archives 
of the United States Court, Richmond, Va. 

The following day former Senator Jonathan Dayton of New Jersey, 
Senator John Smith of Ohio, Comfort Tyler and Israel Smith of New 
York, and Davis Floyd of the Territory of Indiana, were presented 
for treason. How Bollmann, Swartwout, Adair, Brown, and others 
escaped indictment is only less comprehensible than the presentment 
of Tyler, Floyd, and the two Smiths for treason. 

2 Blennerhassett Papers: Safford, 314. "Two of the most respect- 
able and influential of that body, since it has been discharged, have 
declared they mistook the meaning of Chief Justice Marshall's 
opinion as to what sort of acts amounted to treason in this country, 
in the case of Swartwout and Ogden [Bollmann] ; that it was under 
the influence of this mistake they concurred in finding such a bill 
against A. Burr, which otherwise would have probably been ignored." 



ADMINISTRATION VERSUS COURT 467 

less "the extremity of circumstances might impel 
him to such a conduct." He could not, for the mo- 
ment, decide; but that "unless it were extorted from 
him by law" he could not even "deliberate on the 
proposition to deliver up any thing which had been 
confided to his honour." 

Marshall announced that there was no "objection 
to the grand jury calling before them and examining 
any man . . who laid under an indictment." Martin 
agreed "there could be no objection." 

The grand jury did not want Burr as a witness, 
said John Randolph. They asked only for the letter. 
If they should wish Burr's presence at all, it would 
be only for the purpose of identifying it. So the 
grand jury withdrew. 1 

Hay was swift to tell his superior all about it, 
although he trembled between gratification and 
alarm. "If every trial were to be like that, I am 
doubtful whether my patience will sustain me while 
I am wading thro' this abyss of human depravity." 

Dutifully he informed the President that he feared 
that "the Gr: Jury had not dismissed all their 
suspicions of Wilkinson," for John Randolph had 
asked for his cipher letter to Burr. Then he de- 
scribed to Jefferson the intolerable prisoner's con- 
duct: "Burr rose immediately, & declared that no 
consideration, no calamity, no desperation, should 
induce him to betray a letter confidentially written. 
He could not even allow himself to deliberate on 
a point, where his conduct was prescribed by the 
clearest principles of honor &c. &c. &c." 
1 Burr Trials, I, 327-28. 



468 JOHN MARSHALL 

Hay then related what Marshall and John Ran- 
dolph had said, underscoring the statement that 
"the Gr: Jury did not want A.B. as a witness" Hay 
did full credit, however, to Burr's appearance of 
candor: "The attitude & tone assumed by Burr 
struck everybody. There was an appearance of 
lionor and magnanimity which brightened the coun- 
tenances of the phalanx who daily attend, for his 
encouragement & support." l 

Day after day was consumed in argument on 
points of evidence, while the grand jury were exam- 
ining witnesses. Marshall delivered a long writ- 
ten opinion upon the question as to whether a wit- 
ness could be forced to give testimony which he 
believed might criminate himself. The District 
Attorney read Jefferson's two letters upon the sub- 
ject of the subpoena duces tecum. No pretext was 
too fragile to be seized by one side or the other, as 
the occasion for argument upon it demanded — 
for instance, whether or not the District Attorney 
might send interrogatories to the grand jury. Al- 
ways the lawyers spoke to the crowd as well as to 
the court, and their passages at arms became ever 
sharper. 2 

Wilkinson is "an honest man and a patriot" — 
no! he is a liar and a thief; Louisiana is a "poor, 
unfortunate, enslaved country"; letters had been 
seized by "foulness and violence"; the arguments 
of Burr's attorneys are "mere declamations"; the 
Government's agents are striving to prevent Burr 

1 Hay to Jefferson, June 25, 1807, Jefferson MSS. Lib. Cong. 

2 Burr Trials, i, 197-357. 



ADMINISTRATION VERSUS COURT 469 

from having "a fair trial . . the newspapers and 
party writers are employed to cry and write him 
down; his counsel are denounced for daring to de- 
fend him; the passions of the grand jury are en- 
deavored to be excited against him, at all events"; 1 
Hay's mind is "harder than Ajax's seven fold shield 
of bull's hide"; Edmund Randolph came into court 
"with mysterious looks of awe and terror . . as if he 
had something to communicate which was too hor- 
rible to be told"; Hay is always "on his heroics"; 
he "hopped up like a parched pea"; the object of 
Burr's counsel is "to prejudice the surrounding 
multitude against General Wilkinson"; one news- 
paper tale is "as impudent a falsehood as ever ma- 
lignity had uttered" — such was the language with 
which the arguments were adorned. They were, 
however, well sprinkled with citations of authority. 2 

1 This was one of Luther Martin's characteristic outbursts. Every 
word of it, however, was true. 

2 Burr Trials, i, 197-357. 



CHAPTER IX 

WHAT IS TREASON? 

No person shall be convicted of Treason unless on the Testimony of two Wit- 
nesses to the same overt Act, or on Confession in open Court. 

(Constitution, Article m, Section 3.) 

Such are the jealous provisions of our laws in favor of the accused that I ques- 
tion if he can be convicted. (Jefferson.) 

The scenes which have passed and those about to be transacted will hereafter 
be deemed fables, unless attested by very high authority. (Aaron Burr.) 
That this court dares not usurp power is most true. That this court dares not 
shrink from its duty is no less true. (Marshall.) 

While the grand jury had been examining wit- 
nesses, interesting things had taken place in Rich- 
mond. Burr's friends increased in number and devo- 
tion. Many of them accompanied him to and from 
court each day. 1 Dinners were given in his honor, 
and Burr returned these courtesies, sometimes en- 
tertaining at his board a score of men and women of 
the leading families of the city. 2 Fashionable Rich- 
mond was rapidly becoming Burr-partisan. In soci- 
ety, as at the bar, the Government had been ma- 
neuvered into defense. Throughout the country, 
indeed, Burr's numerous adherents had proved 
stanchly loyal to him. 

"I believe," notes Senator Plumer in his diary, 
"even at this period, that no man in this country, 
has more personal friends or who are more firmly 
attached to his interests — or would make greater 

1 Blennerhassett Papers: Safford, 298. 

Blennerhassett wrote this comment when the trial was nearly over. 
He said that two hundred men acted as a bodyguard to Burr on his 
way to court each day. 

2 Parton: Burr, 481. 



WHAT IS TREASON? 471 

sacrifices to aid him than this man." 1 But this 
availed Burr nothing as against the opinion of the 
multitude, which Jefferson manipulated as he chose. 
Indeed, save in Richmond, this very fidelity of Burr's 
friends served rather to increase the public animos- 
ity; for many of these friends were persons of stand- 
ing, and this fact did not appeal favorably to the 
rank and file of the rampant democracy of the period. 

In Richmond, however, Burr's presence and visi- 
ble peril animated his followers to aggressive action. 
On the streets, in the taverns and drinking-places, 
his adherents grew bolder. Young Swartwout 
chanced to meet the bulky, epauletted Wilkinson on 
the sidewalk. Flying into "a paroxysm of disgust 
and rage," Burr's youthful follower 2 shouldered the 
burly general "into the middle of the street." Wil- 
kinson swallowed the insult. On learning of the 
incident Jackson "was wild with delight." 3 Burr's 
enemies were as furious with anger. To spirited 
Virginians, only treason itself was worse than the 
refusal of Wilkinson, thus insulted, to fight. 

Swartwout, perhaps inspired by Jackson, later 
confirmed this public impression of Wilkinson's 
cowardice. He challenged the General to a duel; the 
hero refused — "he held no correspondence with 
traitors or conspirators," he loftily observed; 4 
whereupon the young "conspirator and traitor" 
denounced, in the public press, the commander of 
the American armies as guilty of treachery, perjury, 

1 April 1, 1807, "Register," Plumer MSS. Lib. Cong. 

2 Swartwout was then t went v-f our years old. 

3 Parton: Jackson, I, 335. 

4 Swartwout challenged Wilkinson after the trial was over. 



472 JOHN MARSHALL 

forgery, and cowardice. 1 The highest officer in the 
American military establishment "posted for cow- 
ardice" by a mere stripling! More than ever was 
Swartwout endeared to Jackson. 

Soon after his arrival at Richmond, and a week 
before Burr was indicted, Wilkinson perceived, to 
his dismay, the current of public favor that was be- 
ginning to run toward Burr; and he wrote to Jeffer- 
son in unctuous horror: "I had anticipated that a 
deluge of Testimony would have been poured forth 
from all quarters, to overwhelm Him [Burr] with 
guilt & dishonour - . . To my Astonishment I found 
the Traitor vindicated & myself condemned by a 
Mass of Wealth Character-influence & Talents- 
merciful God what a Spectacle did I behold- In- 
tegrity & Truth perverted & trampled under foot 
by turpitude & Guilt, Patriotism appaled & Usurpa- 
tion triumphant." 2 

Wilkinson was plainly weakening, and Jefferson 
hastened to comfort his chief witness: "No one is 
more sensible than myself of the injustice which has 
been aimed at you. Accept I pray, my salutations 
and assurances of respect and esteem." 3 

1 See brief account of this incident, including Swartwout's open let. 
ter to Wilkinson, in Blennerhassett Papers: Safford, footnote to 459-60. 

2 Wilkinson to Jefferson, June 17, 1807, "Letters in Relation," 
MSS. Lib. Cong. 

3 Jefferson to Wilkinson, June 21, 1807, Wilkinson: Memoirs, n, 
Appendix xxx. Jefferson's letter also contains the following: "You 
have, indeed, had a fiery trial at New Orleans, but it was soon appar- 
ent that the clamorous were only the criminal, endeavouring to turn 
the public attention from themselves, and their leader, upon any other 
object. . . Your enemies have filled the public ear with slanders, and 
your mind with trouble, on that account. The establishment of their 
guilt, will . . place you on higher ground in the public estimate, and 
public confidence." 



WHAT IS TREASON? 473 

Before the grand jury had indicted Burr anc 
Blennerhassett, Wilkinson suffered another humilia- 
tion. On the very day that the General sent his wail- 
ing cry of outraged virtue to the President, Burr 
gave notice that he would move that an attachment 
should issue against Jefferson's hero for "contempt 
in obstructing the administration of justice" by 
rifling the mails, imprisoning witnesses, and extort- 
ing testimony by torture. 1 The following day was 
consumed in argument upon the motion that did 
not rise far above bickering. Marshall ruled that wit- 
nesses should be heard in support of Burr's applica- 
tion, and that Wilkinson ought to be present. 2 Accord- 
ingly, the General was ordered to come into court. 

James Knox, one of the young men who had ac- 
companied Burr on his disastrous expedition, had 
been brought from New Orleans as a witness for 
the Government. He told a straightforward story 
of brutality inflicted upon him because he could not 
readily answer the printed questions sent out by 
Jefferson's Attorney-General. 3 By other witnesses 
it appeared that letters had been improperly taken 
from the post-office in New Orleans. 4 An argument 
followed in which counsel on both sides distinguished 
themselves by the learning and eloquence they dis- 
played. 5 

It was while Botts was speaking on this motion to 
attach Wilkinson, that the grand jury returned the 
bills of indictment. 6 So came the dramatic climax. 

1 Burr Trials, i, 227-53. 

* lb. 257-67. Wilkinson was then giving his testimony before the 
grand jury. 

» lb. 268-72. * lb. 276-77. 5 lb. 277-305. 6 See supra, 455-56 



474 JOHN MARSHALL 

Instantly the argument over the attachment of 
Wilkinson was suspended. Burr said that he would 
"prove that the indictment against him had been 
obtained by perjury "; and that this was a reason for 
the court to exercise its discretion in his favor and 
to accept bail instead of imprisoning him. 1 Marshall 
asked Martin whether he had "any precedent, 
where a court has bailed for treason, after the finding 
of a grand jury," when "the testimony . . had been 
impeached for perjury," or new testimony had been 
presented to the court. 2 For once in his life, Martin 
could not answer immediately and offhand. So that 
night Aaron Burr slept in the common jail at Rich- 
mond. 

"The cup of bitterness has been administered to 
him with unsparing hand," wrote Washington Irv- 
ing. 3 But he did not quail. He was released next 
morning upon a writ of habeas corpus; 4 the argu- 
ment on the request for the attachment of Wilkinson 
was resumed, and for three days counsel attacked 
and counter-attacked. 5 On June 26, Burr's attorneys 
made oath that confinement in the city jail was en- 
dangering his health ; also that they could not, under 
such conditions, properly consult with him about 
the conduct of his case. Accordingly, Marshall or- 
dered Burr removed to the house occupied by Lu- 
ther Martin; and to be confined to the front room, 
with the window shutters secured by bars, the door 
by a padlock, and the building guarded by seven 
men. Burr pleaded not guilty to the indictments 

1 Burr Trials, i, 306. 2 lb. 308. 

3 Irving to Miss Fairlie, July 7, 1807, Irving, i, 152. 

4 Burr Trials, I, 312. 8 lb. 313-50. 



WHAT IS TREASON? 475 

against him, and orders were given for summoning 
the jury to try him. 1 

Finally, Marshall delivered his written opinion 
upon the motion to attach Wilkinson. It was un- 
important, and held that Wilkinson had not been 
shown to have influenced the judge who ordered 
Knox imprisoned or to have violated the laws in- 
tentionally. The Chief Justice ordered the marshal 
to summon, in addition to the general panel, forty- 
eight men to appear on August 3 from W 7 ood 
County, in which Blennerhassett's island was lo- 
cated, and where the indictment charged that the 
crime had been committed. 2 

Five days before Marshall adjourned court in 
order that jurymen might be summoned and both 
prosecution and defense enabled to prepare for 
trial, an event occurred which proved, as nothing 
else could have done, how intent were the people on 
the prosecution of Burr, how unshakable the tenac- 
ity with which Jefferson pursued him. 

On June 22, 1807, the British warship, the Leop- 
ard, halted the American frigate, the Chesapeake, as 
the latter was putting out to sea from Norfolk. The 
British officers demanded of Commodore James 
Barron to search the American ship for British de- 
serters and to take them if found. Barron refused. 
Thereupon the Leopard, having drawn alongside the 
American vessel, without warning poured broadsides 
into her until her masts were shot away, her rigging 
destroyed, three sailors killed and eighteen wounded. 
The Chesapeake had not been fitted out, was unable 

1 Burr Trials, i, 350-54. 3 lb. 354-57. 



476 JOHN MARSHALL 

to reply, and finally was forced to strike her colors. 
The British officers then came on board and seized 
the men they claimed as deserters, all but one of 
whom were American-born citizens. 1 

The whole country, except New England, roared 
with anger when the news reached the widely sepa- 
rated sections of it; but the tempest soon spent its 
fury. Quickly the popular clamor returned to the 
"traitor" awaiting trial at Richmond. Nor did this 
"enormity," as Jefferson called the attack on the 
Chesapeake, 2 committed by a foreign power in 
American waters, weaken for a moment the Presi- 
dent's determination to punish the native disturber 
of our domestic felicity. 

The news of the Chesapeake outrage arrived at 
Richmond on June 25, and John Randolph supposed 
that, of course, Jefferson would immediately call 
Congress in special session. 3 The President did 
nothing of the kind. Wilkinson, as Commander of 
the Army, advised him against armed retaliation. 
The "late outrage by the British," wrote the Gen- 
eral, "has produced . . a degree of Emotion border- 
ing on rage- I revere the Honourable impulse but 
fear its Effects- . . The present is no moment for 
precipitancy or a stretch of power- on the contrary 
the British being prepared for War & we not, a sud- 
den appeal to hostilities will give them a great ad- 
vantage- . . The efforts made here [Richmond] by a 
band of depraved Citizens, in conjunction with an 

1 See Adams: U.S. n, chap, i; Channing: Jeff. System, 189-94; 
Hildreth, m, 402; and see vol. iv, chap, i, of this work. 

2 Jefferson's Proclamation, July 2, 1807, Works: Ford, x, 434. 

3 Randolph to Nicholson, June 25, 1807, Adams: John Randolph, 



WHAT IS TREASON? 477 

audacious phalanx of insolent exotics, to save Burr, 
will have an ultimate good Effect, for the national 
Character of the Ancient dominion is in display, and 
the honest impulses of true patriotism will soon 
silence the advocates of usurpation without & con- 
spiracy within." 

Wilkinson tells Jefferson that he is coming to 
Washington forthwith to pay his "respects," and 
concludes: "You are doubtless well advised of pro- 
ceedings here in the case of Burr- to me they are 
incomprehensible as I am no Jurist- The Grand 
Jury actually made an attempt to present me for 
Misprision of Treason- . . I feel myself between 
' Scylla and Carybdis ' the Jury would Dishonor me 
for failing of my Duty, and Burr & his Conspirators 
for performing it-" l 

Not until five weeks after the Chesapeake affair 
did the President call Congress to convene in special 
session on October 26 — more than four months 
after the occurrence of the crisis it was summoned to 
consider. 2 But in the meantime Jefferson had sent a 
messenger to advise the American Minister in Lon- 
don to tell the British Government what had hap- 
pened, and to demand a disavowal and an apology. 

Meanwhile, the Administration vigorously pushed 
the prosecution of the imprisoned "traitor''* at 
Richmond. 3 Hay was dissatisfied that Burr should 

1 Wilkinson to Jefferson, June 29, 1807, "Letters in Relation," 
MSS. Lib. Cong. 

2 Jefferson to Congress, Annals, 10th Cong. 1st Sess. 9. 

3 At this time Jefferson wrote curious letters, apparently to explain, 
by inference, to his friends in France his want of energy in the Chesa- 
peake affair and the vigor he displayed in the prosecution of Burr. 
"Burr's conspiracy has been one of the most flagitious of which his- 



478 JOHN MARSHALL 

remain in Martin's house, even under guard and 
with windows barred and door locked; and he ob- 
tained from the Executive Council of Virginia a 
tender to the court of " apartments on the third 
floor" of the State Penitentiary for the incarceration 
of the prisoner. Burr's counsel strenuously ob- 
jected, but Marshall ordered that he be confined 
there until August 2, at which time he should be 
returned to the barred and padlocked room in 
Martin's house. 1 

In the penitentiary, "situated in a solitary place 
among the hills" a mile and a half from Richmond, 2 
Burr remained for five weeks. Three large rooms 
were given him in the third story; the jailer was con- 
siderate and kind; his friends called on him every 
day; 3 and servants constantly "arrived with mes- 
sages, notes, and inquiries, bringing oranges, lem- 
ons, pineapples, raspberries, apricots, cream, butter, 
ice and some ordinary articles." 4 

tory will ever furnish an example. . . Yet altho' there is not a man in 
the U S who is not satisfied of the depth of his guilt, such are the jeal- 
ous provisions of our laws in favor of the accused, . . that I question 
if he can be convicted." (Jefferson to Du Pont de Nemours, July 14, 
1807, Works: Ford, x, 461; also see same to Lafayette, same date, ib. 
463.) It will be observed that in these letters Jefferson condemns the 
laxity of American laws instead of blaming Marshall. 

1 Burr Trials, I, 357-59. 

* Irving to Miss Fairlie, July 7, 1807, Irving, i, 153. "The only rea- 
son given for immuring him in this abode of thieves, cut-throats, and 
incendiaries," says Irving, "was that it would save the United States 
a couple of hundred dollars (the charge of guarding him at his lodg- 
ings), and it would insure the security of his person." 

3 "Burr lives in great style, and sees much company within his 
gratings, where it is as difficult to get an audience as if he really were 
an Emperor." (Blennerhassett Papers: Safford, 324.) At first, how- 
ever, his treatment was very severe. (See Irving to Miss Fairlie, July 
7, 1807, Irving, i, 153.) 

4 Burr to his daughter, July 3, 1807, Davis, u, 409. 



WHAT IS TREASON? 479 

Burr wrote Theodosia of his many visitors, 
women as well as men: ''It is well that I have an 
ante-chamber, or I should often be gene with visi- 
ters." If Theodosia should come on for the trial, he 
playfully admonishes her that there must be "no 
agitations, no complaints, no fears or anxieties on 
the road, or I renounce thee." 1 

Finally Burr asked his daughter to come to him: 
"I want an independent and discerning witness to 
my conduct and that of the government. The scenes 
which have passed and those about to be transacted 
will exceed all reasonable credibility, and will here- 
after be deemed fables, unless attested by very high 
authority. . . I should never invite any one, much 
less those so dear to me, to witness my disgrace. I 
may be immured in dungeons, chained, murdered in 
legal form, but I cannot be humiliated or disgraced. 
If absent, you will suffer great solicitude. In my 
presence you will feel none, whatever be the malice 
or the power of my enemies, and in both they 
abound." 2 

Theodosia was soon with her father. Her hus- 
band, Joseph Alston, now Governor of South Caro- 
lina, accompanied her; and she brought her little 
son, who, almost as much as his beautiful mother, 
was the delight of Burr's heart. 

During these torrid weeks the public temper 
throughout the country rose with the thermometer. 3 

1 Burr to his daughter, July 6, 1807, Davis, n, 410. 

2 Same to same, July 24, 1807, ib. 410. 

3 At a Fourth of July celebration in Cecil County, Maryland, toasts 
were proposed wishing for the grand jury "a crown of immortal glory" 
for "their zeal and patriotism in the cause of liberty"; hoping that 



480 JOHN MARSHALL 

The popular distrust of Marshall grew into open 
hostility. A report of the proceedings, down to the 
time when Burr was indicted for treason, was pub- 
lished in a thick pamphlet and sold all over Virginia 
and neighboring States. The impression which the 
people thus acquired was that Marshall was protect- 
ing Burr; for had he not refused to imprison him 
until the grand jury indicted the "traitor"? 

The Chief Justice estimated the situation accu- 
rately. He knew, moreover, that prosecutions for 
treason might be instituted thereafter in other parts 
of the country, particularly in New England. The 
Federalist leaders in that section had already spoken 
and written sentiments as disloyal, essentially, as 
those now attributed to Burr; and, at that very 
time, when the outcry against Burr was loudest, they 
were beginning to revive their project of seceding 
from the Union. 1 To so excellent a politician and so 
far-seeing a statesman as Marshall, it must have 
seemed probable that his party friends in New Eng- 
land might be brought before the courts to answer 
to the same charge as that against Aaron Burr. 

At all events, he took, at this time, a wise and 
characteristically prudent step. Four days after the 
news of the Chesapeake affair reached Richmond, 
the Chief Justice asked his associates on the Supreme 
Bench for their opinion on the law of treason as pre- 

Martin would receive "an honorable coat of tar, and a plumage of 
feathers" as a reward for "his exertions to preserve the Catiline of 
America"; and praying that Burr's treachery to his country might 
" exalt him to the scaffold, and hemp be his escort to the republic of 
dust and ashes." (Parton: Burr, 478.) 

1 See vol. iv, chap, i, of this work. Also supra, chap. m. 



WHAT IS TREASON? 481 

sen ted in the case of Aaron Burr. "I am aware," 
he wrote, "of the unwillingness with which a judge 
will commit himself by an opinion on a case not 
before him, and on which he has heard no argument. 
Could this case be readily carried before the Su- 
preme Court, I would not ask an opinion in its pres- 
ent stage. But these questions must be decided 
by the judges separately on their respective circuits, 
and I am sure that there would be a strong and 
general repugnance to giving contradictory decisions 
on the same points. Such a circumstance would be 
disreputable to the judges themselves as well as to 
our judicial system. This suggestion suggests the 
propriety of a consultation on new and different 
subjects and will, I trust, apologize for this letter." * 

Whether a consultation was held during the five 
weeks that the Burr trial was suspended is not known. 
But if the members of the Supreme Court did not 
meet the Chief Justice, it would appear to be certain 
that they wrote him their views of the American law 
of treason; and that, in the crucial opinion which 
Marshall delivered on that subject more than two 
months after he had written to his associates, he 
stated their mature judgments as well as his own. 

It was, therefore, with a composure, unwonted 
even for him, that Marshall again opened court on 
August 3, 1807. The crowd was, if possible, greater 
than ever. Burr entered the hall with his son-in-law, 
Governor Alston. 2 Not until a week later was coun- 

1 Marshall to the Associate Justices of the Supreme Court, June 
29, 1807, as quoted by Horace Gray, Associate Justice of the Supreme 
Court, in Dillon, i, 72. 

2 Parton: Burr, 483. 



482 JOHN MARSHALL 

sel for the Government ready to proceed. When at 
last the men summoned to serve on the petit jury 
were examined as to their qualifications, it was all 
but impossible to find one impartial man among 
them — utterly impossible to secure one who had 
not formed opinions from what, for months, had 
been printed in the newspapers. 

Marshall described with fairness the indispensa- 
ble qualifications of a juror. 1 Men were rejected as 
fast as they were questioned — all had read the sto- 
ries and editorial opinions that had filled the press, 
and had accepted the deliberate judgment of Jeffer- 
son and the editors; also, they had been impressed 
bv the public clamor thus created, and believed 
Burr guilty of treason. Out of forty -eight men ex- 
amined during the first day, only four could be 
accepted. 2 

While the examination of jurors was in progress, 
one of the most brilliant debates of the entire trial 
sprang up, as to the nature and extent of opinions 
formed which would exclude a man from serving on 
a jury. 3 

When Marshall was ready to deliver his opinion, 
he had heard all the reasoning that great lawyers 
could give on the subject, and had listened to acute 
analyses of all the authorities. His statement of the 
law was the ablest opinion he had yet delivered dur- 
ing the proceedings, and is an admirable example of 
his best logical method. It appears, however, to have 
been unnecessary, and was doubtless delivered as a 
part of Marshall's carefully considered plan to go to 

1 Burr Trials, I, 369-70. 2 lb. 370-85. 3 lb. 385-414. 



WHAT IS TREASON? 483 

the extreme throughout the trial in the hearing and 
examination of every subject. 1 

For nearly two weeks the efforts to select a jury 
continued. Not until August 15 were twelve men 
secured, and most of these avowed that they had 
formed opinions that Burr was a traitor. They were 
accepted only because impartial men could not be 
found. 

When Marshall finished the reading of his opinion, 
Hay promptly advised Jefferson that "the [bi]as of 
Judge Marshall is as obvious, as if it was [stamjped 
upon his forehead. . . [He is] endeavoring to work 
himself up to a state of [fjeeling which will enable 
[him] to aid Burr throughout the trial, without ap- 
pearing to be conscious of doing wrong. He [Mar- 
shall] seems to think that his reputation is irretriev- 
ably gone, and that he has now nothing to lose by 
doing as he pleases. — His concern for Burr is won- 
derful. He told me many years ago, when Burr was 
rising in the estimation of the republican party, that 
he was as profligate in principle, as he was desper- 
ate in fortune. I remember his words. They aston- 
ished me. 

"Yet," complained Hay, "when the Gr: Jury 
brought in their bill the Chief Justice gazed at him, 
for a long time, without appearing conscious that 
he was doing so, with an expression of sympathy 
& sorrow as strong, as the human countenance can 
exhibit without palpable emotion. If Mr. Burr has 
any feeling left, yesterday must have been a day of 
agonizing humiliation," because the answers of the 
1 Burr Trials, i. 414-20. 



484 JOHN MARSHALL 

jurors had been uniformly against him; and Hay 
gleefully relates specimens of them. 

"There is but one chance for the accused," he 
continued, "and that is a good one because it rests 
with the Chief Justice. It is already hinted, but not 
by himself [that] the decision of the Supreme Court 
will no[t be] deemed binding. If the assembly of 
men on [Blennerhassett's isjland, can be pronounced 
'not an overt act' [it will] be so pronounced." ' 

Hay's opening statement to the jury was his best 
performance of the entire proceedings. He de- 
scribed Burr's purpose in almost the very words of 
Jefferson's Special Message. The gathering on Blen- 
nerhassett's island was, he said, the overt act; Burr, 
it was true, was not there at the time, but his pres- 
ence was not necessary. Had not Marshall, in the 
Bollmann and Swartwout case, said that "if war be 
actually levied, . . all those who perform any part, 
however minute, or however remote from the scene of 
action, and who are actually leagued in the general 
conspiracy, are to be considered as traitors'"? 2 

The examination of the Government's witnesses 
began. Eaton took the stand; but Burr insisted that 
the overt act must be proved before collateral testi- 
mony could be admitted. So came the first crossing 
of swords over the point that was to save the life of 
Aaron Burr. The arguments of counsel were bril- 
liant ; but neither side forgot the public. They must 
thrill the audience as well as convince the court. 
"There had been a great deal of war in the news- 

1 Hay to Jefferson, Aug. 11, 1807, Jefferson MSS. Lib. Cong. 

2 Burr Trials, i, 433-51. 



WHAT IS TREASON? 485 

papers," said Wickham, but everybody knew "that 
there had been no war in fact." Wirt insisted on 
"unfolding events as they occurred"; that was "the 
lucid order of nature and reason." Martin pointed 
out that Eaton's testimony did not "relate to any 
acts committed any where, but to mere declarations 
out of the district." l Let the evidence be pertinent. 
The indictment charged a specific act, and it must 
be proved as charged. No man could be expected 
suddenly to answer for every act of his life. If Burr 
had planned to free Mexico and had succeeded, "he 
would have merited the applause of the friends of 
liberty and of posterity; . . but his friends may now 
pray that he may not meet the fate that Washington 
himself would have met, if the revolution had not 
been established." 

A mass of decisions, English as well as American, 
were cited by both Wirt and Martin; 2 and when, 
that night, Marshall began to write his opinion on 
whether the overt act must be proved before other 
testimony could be received, all authorities had 
been reviewed, all arguments made. 

Must the overt act be proved before hearing col- 
lateral testimony? The question, said Marshall, was 
precisely the same as that raised and decided on the 
motion to commit Burr. But it came up now under 
different circumstances — an indictment had been 
found "specifying a charge which is to be proved," 
and thus "an issue made up which presents a point 
to which all the testimony must apply." So Mar- 

1 Hay had announced that Eaton's testimony would be to the same 
effect as his deposition. 

2 Burr Trials, I, 452-69. 



486 JOHN MARSHALL 

shall could now "determine, with some accuracy, on 
the relevancy of the testimony." 

The prosecution contended that the crime con- 
sisted of "the fact and the intention," and that the 
Government might first prove either of these; the 
defense insisted that the overt act must be shown 
before any testimony, explanatory or confirmatory 
of that fact, can be received. To prove first the fact 
charged was certainly "the most useful . . and . . 
natural order of testimony"; but no fixed rule of 
evidence required it, and no case had been cited in 
which any court had ever "forced" it on counsel 
for the prosecution. 

The different impressions made upon the minds 
of the jury by the order of testimony was important, 
said Marshall: "Although human laws punish ac- 
tions, the human mind spontaneously attaches guilt 
to intentions." When testimony had prepared the 
mind to look upon the prisoner's designs as criminal, 
a jury would consider a fact in a different light than 
if it had been proved before guilty intentions had 
been shown. However, since no rule prevented the 
prosecution from first proving either, "no alteration 
of that arrangement . . will now be directed." 

But, continued Marshall, "the intention which 
is . . relevant in this stage of the inquiry is the in- 
tention which composes a part of the crime, the 
intention with which the overt act itself was com- 
mitted; not a general evil disposition, or an inten- 
tion to commit a distinct [different] fact." Testi- 
mony as to such intentions, "if admissible at all, 
is received as corroborative or confirmatory testi- 



WHAT IS TREASON? 487 

mony," and could not precede "that which it is to 
corroborate or confirm." 

Apply this rule to Eaton's testimony : it would be 
admissible only "so far as his testimony relate[d] 
to the fact charged in the indictment, . . to levying 
war on Blennerhassett's island," and the "design to 
seize on New- Orleans, or to separate by force, the 
western from the Atlantic states"; but "so far as it 
respect [ed] other plans to be executed in the city of 
Washington, or elsewhere," Eaton's story would be 
at best merely "corroborative testimony," and, "if 
admissible at any time," could be received only 
"after hearing that which it is to confirm." 

So let Hay "proceed according to his own judg- 
ment." Marshall would not exclude any testimony 
except that which appeared to be irrelevant, and 
upon this he would decide when it was offered. 1 

Again Eaton was called to the stand. Before he 
began his tale, he wished to explain "the motives" 
of his "own conduct." Marshall blandly suggested 
that the witness stick to Burr's revelations to him. 
Then, said Eaton, "concerning any overt act, which 
goes to prove Aaron Burr guilty of treason I know 
nothing. . . But concerning Colonel Burr's expres- 
sions of treasonable intentions, I know much." 

Notwithstanding Marshall's intimation that Ea- 
ton must confine his testimony to Burr, "the hero 
of Derne " was not to be denied his self - vindication ; 
not even the Chief Justice should check his recital 
of his patriotism, his glories, his wrongs. Burr had 
good reasons for supposing him "disaffected toward 

1 Burr Trials, I, 469-72. 



488 JOHN MARSHALL 

the Government"; he then related at length his 
services in Africa, the lack of appreciation of his 
ability and heroism, the preferment of unworthy 
men to the neglect of himself. Finally, Eaton, who 
"strutted more in buskin than usual," to the amuse- 
ment of "the whole court," 1 delivered his testi- 
mony, and once more related what he had said in 
his deposition. Since Marshall had "decided it to 
be irrelevant," Eaton omitted the details about 
Burr's plans to murder Jefferson, turn Congress out 
of the Capitol, seize the Navy, and make himself 
ruler of America at one bold and bloody stroke. 2 

Commodore Truxtun then gave the simple and 
direct account, already related, of Burr's conversa- 
tion with him; 3 Peter Taylor and Jacob Allbright 
once more told their strange tales; and the three 
Morgans again narrated the incidents of Burr's 
incredible acts and statements while visiting the 
elder Morgan at Morganza. 4 

William Love, an Englishman, formerly Blenner- 
hassett's servant — a dull, ignorant, and timorous 
creature — testified to the gathering of ''about be- 
twixt twenty and twenty -five" men at his employer's 
island, some of whom went "out a gunning." He 
saw no other arms except those belonging to his 

1 Blennerkassett Papers: Safford, 343. 

2 It was this farrago, published in every newspaper, that had in- 
fluenced the country only less than Jefferson's Special Message to 
Congress. 

3 Commodore Decatur's testimony was almost identical with that 
of Truxtun. More convincing still, General Adair, writing before the 
trial began, told substantially the same story. (Adair's statement, 
March, 1807, as quoted in Parton: Burr, footnote to 493.) 

4 For the full Morgan testimony, see Burr Trials, i, 497-506. 



WHAT IS TREASON? 489 

master, nor did he "see any guns presented," as All- 
bright had described. Blennerhassett told him that 
if he would go with him to the Washita, he should 
have "a piece of land." Love "understood the ob- 
ject of the expedition was to settle Washita lands." l 

Dudley Woodbridge, once a partner of Blenner- 
hassett, told of Burr's purchase from his firm of a 
hundred barrels of pork and fifteen boats, paid by 
a draft on Ogden of New York; of Blennerhassett's 
short conversation with W T oodbridge about the en- 
terprise, from which he inferred that "the object 
was Mexico"; of his settlement with Blennerhassett 
of their partnership accounts; of Blennerhassett's 
financial resources; and of the characteristics of the 
man — -"very nearsighted," ignorant of military 
affairs, a literary person, a chemist and musician, 
with the reputation of having "every kind of sense 
but common sense." 

The witness related his observation of the seizure 
at Marietta of Burr's few boats and provisions by 
the Ohio militia, and the sale of them by the Gov- 
ernment; of the assemblage of the twenty or thirty 
men on Blennerhassett's island; of their quiet, or- 
derly conduct; of Comfort Tyler's declaration "that 
he would not resist the constituted authorities, but 
that he would not be stopped by a mob"; of Mrs. 
Blennerhassett's taking part of her husband's li- 
brary with her when she followed him, after the flight 
of the terrified little band from the island; and of the 
sale of the remainder of the cultivated visionary's 
books. 2 

1 Burr Trials, i, 514-18. 2 lb. 518-26. 



490 JOHN MARSHALL 

Simeon Poole, who had been sent by Governor 
Tiffin of Ohio to arrest Blennerhassett, said that he 
was not on the island, but from dusk until ten o'clock 
watched from a concealed place on the Ohio shore. 
He saw a few men walking about, who during the 
night kindled a fire, by the light of which it seemed 
to Poole that some of them were "armed." He 
could not be sure from where he watched, but they 
"looked like sentinels." However, Poole "could 
not say whether the persons . . were not merely 
loitering around the fire." There were some boats, 
he said, both big and little. Also, when anybody 
wanted to cross from the Ohio side, the acute Poole 
thought that "a watchword" was given. The night 
was cold, the rural sleuth admitted, and it was cus- 
tomary to build fires on the river-bank. He ob- 
served, however, another suspicious circumstance — 
"lanterns were passing . . between the house and 
boats. . . Most of the people were without guns," he 
admitted; but, although he could not see clearly, he 
"apprehended that some of them had guns." l 

Morris P. Belknap, an Ohio business man, testi- 
fied that he had hailed a boat and been taken to the 
island on the night when the gathering and flight 
took place. 2 He saw perhaps twenty men in the 
house; "two or three . . near the door, had rifles, 
and appeared to be cleaning them. These were all 
the arms I saw." He also observed two or three 
boats. 3 

1 Burr Trials, i, 527-28. 

2 Belknap was undoubtedly one of those whom Poole saw cross the 
stream. Woodbridge and Dana were the others. 

3 Burr Trials, I, 529. 



WHAT IS TREASON? 491 

Edmund P. Dana testified that, with two other 
young men, he had gone in a skiff to the island on 
that war-levying night. 1 In the hall he saw about 
"fifteen or sixteen" men — "one of them was run- 
ning some bullets." Dana was shown to another 
room where he met "colonel Tyler, Blennerhassett, 
Mr. Smith of New- York . . and three or four other 
gentlemen." He had met Tyler the day before, and 
was now "introduced to Mr. Smith and Doctor 
M'Castle 2 who had his lady . . there." The men in 
the hall "did not appear to be alarmed" when Dana 
and his companions came in. Dana "never saw 
colonel Burr on the island." 3 

The Government's counsel admitted that Burr 
was in Kentucky at that time. 4 

Such was the testimony, and the whole of it, ad- 
duced to support the charge that Burr had, at Blen- 
nerhassett's island, on December 13, 1806, levied 
war against the United States. Such was the entire 
proof of that overt act as laid in the indictment 
when Marshall was called upon to make that mo- 
mentous decision upon which the fate of Aaron Burr 
depended. 

The defense moved that, since no overt act was 
proved as charged, collateral testimony as to what 
had been said and done elsewhere should not be 
received. Wickham opened the argument in an 
address worthy of that historic occasion. For nearly 
two days this superb lawyer spoke. Burr's counsel 
would, he said, have preferred to go on, for they 

1 These young men were thinking of joining the expedition. 

2 The physician who accompanied the party. 

1 Burr Trials, I, 528-29. 4 lb. 529. 



492 JOHN MARSHALL 

could "adduce . . conclusive testimony" as to Burr's 
innocence. But only seven witnesses out of "about 
one hundred and forty " summoned by the Govern- 
ment had been examined, and it was admitted that 
these seven had given all the testimony in existence 
to prove the overt act. 

If that overt act had not been established and yet 
the more than one hundred and thirty remaining 
witnesses were to be examined, it was manifest that 
"weeks, perhaps months," would elapse before the 
Government completed its case. It was the un- 
healthy season, and it was most probable that one 
or more jurors would become ill. If so, said Wick- 
ham, "the cause must lie over and our client, inno- 
cent, may be subjected to a prolongation of that 
confinement which is in itself . . punishment." Yet, 
after all this suffering, expense, and delay, the 
result must be the same as if the evidence were 
arrested now, since there was no testimony to the 
overt act other than that already given. 

Did that testimony, then, prove the overt act of 
levying war on the United States? Those who wrote 
the Constitution "well knew the dreadful punish- 
ments inflicted and the grievous oppressions pro- 
duced by [the doctrine of] constructive treasons in 
other countries." For this reason, truly declared 
Wickham, the American Constitution explicitly de- 
fined that crime and prescribed the only way it could 
be proved. This could not be modified by the 
common law, since the United States, as a Nation, 
had not adopted it; and the purpose of the Constitu- 
tion was to destroy, as far as America was concerned, 



WHAT IS TREASON? 493 

the British theory of treason. The Constitution 
"explains itself," said Wickham; under it treason is 
a newly created offense against a newly created gov- 
ernment. Even the Government's counsel "will not 
contend that the words [in the Constitution con- 
cerning treason] used in their natural sense," can 
embrace the case of a person who never committed 
an act of hostility against the United States and 
was not even present when one was committed; 1 
otherwise what horrible cruelties any Administra- 
tion could inflict on any American citizen. 

The Supreme Court, in the case of Bollmann and 
Swartwout, had, indeed, pronounced a "dictum" to 
the contrary, said Wickham, but that had been in 
a mere case of commitment; the present point did 
not then come before the court; it was not argued 
by counsel. So Marshall's objectionable language 
in that case was not authority. 2 

It was only by the doctrine of constructive treason 
that Burr could be said to be at Blennerhassett's 
island at the time charged — the doctrine that "in 
treason all are principals," and that, by "construc- 
tion of law," he was present, although in reality he 
was hundreds of miles away. But this was the very 
doctrine which the Constitution prohibited from 
ever being applied in America. 

If Burr "conspired to levy war against the United 
States, and . . the war was carried on by others in 
his absence, his offense can only be punished by a 
special indictment charging the facts as they existed.' 9 
The prosecution "should at once withdraw their 

1 Burr Trials, i, 533-34. 2 lb. 55S-56. 



494 JOHN MARSHALL 

indictment as it does not contain a specification that 
can be supported by the evidence." * 

Edmund Randolph followed Wickham, but added 
nothing to his rich and solid argument. Addressing 
Marshall personally, Randolph exclaimed: "Amidst 
all the difficulties of the trial, I congratulate Your 
Honour on having the opportunity of fixing the law, 
relative to this peculiar crime, on grounds which will 
not deceive, and with such regard for human rights, 
that we shall bless the day on which the sentence 
was given, to prevent the fate of Stafford." 2 

When Randolph closed, on Friday, August 21, 
Hay asked Marshall to postpone further discussion 
until Monday, that counsel for the Government 
might prepare their arguments. 3 Burr's attorneys 
stoutly objected, but Marshall wisely granted Hay's 
request. 4 " Did you not do an unprecedented thing," 
a friend asked Marshall, "in suspending a criminal 
prosecution and granting two days, in the midst of 
the argument on a point then under discussion, for 
counsel to get ready to speak upon it?" "Yes," 
replied the Chief Justice, "I did and I knew it. But 
if I had not done so I should have been reproached 
with not being disposed to give the prosecutors an 
opportunity to answer." 5 

Saturday and Sunday were more than time enough 
to light the fires of MacRae's Scotch wrath. His 
anger dominated him to such an extent that he 
became almost incoherent. 6 Burr not a principal! 
"Let all who are in any manner concerned in treason 

1 Burr Trials, i, 557. 2 lb. n, 3-12. 3 lb. 25. 4 lb. 26-27. 

5 Blennerhassett Papers: Safford, 354-55. 

6 Alston's description in ib. 360. 



WHAT IS TREASON? 495 

be principals," and treason will be suppressed. 1 Mac- 
Rae, speaking the language of Jeffreys, had, in his 
rage, forgotten that he had immigrated to America. 

On Tuesday, August 25, although the court 
opened at nine o'clock, 2 the heat was so oppressive 
that nothing but the public interest — now reaching 
the point of hysteria — could have kept the densely 
packed audience in the stifling hall. 3 But the spec- 
tators soon forgot their discomfort. The youthful, 
handsome William Wirt enraptured them with an 
eloquence which has lived for a century. It is im- 
possible to give a faithful condensation of this 
charming and powerful address, the mingled cour- 
tesy and boldness of it, the apt phrase, the effective 
imagery, the firm logic, the wealth of learning. Only 
examples can be presented; and these do scant jus- 
tice to the young lawyer's speech. 

"When we speak of treason, we must call it trea- 
son. . . Why then are gentlemen so sensitive . . as if 
instead of a hall of justice, we were in a drawing- 
room with colonel Burr, and were barbarously vio- 
lating towards him every principle of decorum and 
humanity? 4 This motion [to arrest the testimony] 
is a bold and original stroke in the noble science of 
defence," made to prevent the hearing of the evi- 
dence. But he knew that Marshall would not "sac- 
rifice public justice, committed to [his] charge, by 
aiding this stratagem to elude the sentence of the 
law." 5 

1 Burr Trials, n, 42. 2 Blennerhassett Papers: Safford, 360. 

3 The temperature was very high throughout the trial. One night 
Blennerhassett was overcome by it. (76. 319.) 

4 Burr Trials, u, 57. 6 lb. 57-59. 



496 JOHN MARSHALL 

Why had Wickham said so little of American and 
so much of British precedents, vanishing "like a 
spirit from American ground and . . resurging by a 
kind of intellectual magic in the middle of the 16th 
century, complaining most dolefully of my lord 
Coke's bowels." It was to get as far as possible away 
from Marshall's decision in the case of Bollmann and 
Swartwout. If Marshall's opinion had been favor- 
able, Wickham "would not have . . deserted a rock 
so broad and solid, to walk upon the waves of the 
Atlantic." Wirt made the most of Marshall's care- 
less language. 1 

The youthful advocate was impressing Marshall as 
well as jury and auditors. "Do you mean to say," 
asked the Chief Justice, "that it is not necessary to 
state in the indictment in what manner the accused, 
who it is admitted was absent, became connected 
with the acts on Blennerhassett's island?" In reply 
Wirt condensed the theory of the prosecution: "I 
mean to say, that the count is general in modern 
cases; that we are endeavoring to make the accused 
a traitor by connection, by stating the act which was 
done, and which act, from his conduct in the trans- 
action, he made his own; that it is sufficient to make 
this charge generally, not only because it is author- 
ized by the constitutional definition, but because it 
is conformable to modern cases, in which the indict- 
ments are pruned of all needless luxuriances." 2 

Burr's presence at the island necessary! If so, a 
man might devise and set in motion "the whole 
mechanism" of treason, "go a hundred miles" away, 
1 Burr Trials, n, 61-65. 2 lb. 92. 



WHAT IS TREASON? 497 

let it be operated by his agents, "and he is innocent, 
. . while those whom he has deluded are to suffer the 
death of traitors." How infamous! Burr only the 
accessory and Blennerhassett the principal! "Will 
any man believe that Burr who is a soldier bold, 
ardent, restless and aspiring, the great actor whose 
brain conceived and whose hand brought the plot 
into operation, should sink down into an accessory 
and Blennerhassett be elevated into a principal!" 

Here W T irt delivered that passage which for nearly 
a hundred years was to be printed in American 
schoolbooks, declaimed by American youth, and to 
become second only to Jefferson's Proclamation, 
Messages, and letters, in fixing, perhaps irremovably, 
public opinion as to Aaron Burr and Harman Blen- 
nerhassett. 1 But his speech was not all rhetoric. 
Indeed, no advocate on either side, except John 
W 7 ickham and Luther Martin, approached him in 
analyses of authorities and closeness of reasoning. 2 

"I cannot promise you, sir, a speech manufac- 
tured out of tropes and figures," remarked Botts in 
beginning his reply. No man better could have been 
found to break the force of the address of his young 
brother of the bar. Wirt had defaced his otherwise 
well-nigh perfect address by the occasional use of 
extravagant rhetoric, some of which, it appears, was 

1 See Burr Trials, n, 96-98. 

For this famous passage of Wirt's speech, see Appendix E. 

Burr was vastly amused by it and it became "a standing joke with 
him for the rest of his life." (See Parton: Burr, 506.) But it was no 
"joke" — standing or otherwise — to the people. They believed 
Wirt's imagery to be a statement of the facts. 

2 " Wirt raised his reputation yesterday, as high as MacRae sunk 
his the day before." (Blennerhassett Papers: Safford, 366.) 



498 JOHN MARSHALL 

not reported. Botts availed himself of one such dis- 
play to make Wirt's argument seem absurd and 
trivial: "Instead of the introduction of a sleeping 
Venus with all the luxury of voluptuous and wanton 
nakedness to charm the reason through the refined 
medium of sensuality, and to convince us that the 
law of treason is with the prosecution by leading 
our imaginations to the fascinating richness . . of 
heaving bosom and luscious waist, I am compelled 
to plod heavily and meekly through the dull doc- 
trines of Hale and Foster." Botts continued, with 
daring but brilliant satire, to ridicule Wirt's un- 
happy rhetoric. 1 Soon spectators, witnesses, jury, 
were in laughter. The older lawyers were vastly 
amused. Even Marshall openly enjoyed the humor. 
His purpose thus accomplished, Botts now ad- 
dressed himself to the evidence, to analyze which he 
had been assigned. And a perfect job he made of it. 
He spoke with impetuous rapidity. 2 He reviewed the 
events at Blennerhassett's island: "There was war, 
when there was confessedly no war; and it happened 
although it was prevented!" As to arms: "No arms 
were necessary . . they might make war with their 
fingers." Yes, yes, "a most bloody war indeed — 
and ten or twelve boats." Referring to the flight 
from Blennerhassett's island, the sarcastic lawyer 
observed: "If I run away and hide to avoid a beating 
I am guilty and may be convicted of assault and 
battery!" What "simpletons" the people of Ken- 
tucky and Mississippi had been! "They hunted but 

1 Burr Trials, n, 123-24. 

2 See Hay's complaint that Botts talked so fast tha,t lie could not 
make notes on his points. (lb. 194.) 



WHAT IS TREASON? 499 

could not find the war," although there it was, right 
among them! 1 

What was the moving force back of the prosecu- 
tion? It was, charged Botts, the rescue of the pres- 
tige of Jefferson's Administration. "It has not only 
been said here but published in all the newspapers 
throughout the United States, that if Aaron Burr 
should be acquitted it will be the severest satire on 
the government; and that the people are called upon 
to support the government by the conviction of 
colonel Burr; . . even jurymen have been taught by 
the common example to insult him." 

No lie was too contemptible to be published about 
him. For instance, "when the grand jury returned a 
true bill, he was firm, serene, unmoved, composed — ■ 
no change of countenance. . . Yet the next day 
they announced in the newspapers," declared Botts, 
"that he was in a state of indescribable consterna- 
tion and dismay." Worse still, "every man who 
dares to look at the accused with a smile or present 
him the hand of friendship" is "denounced as a 
traitor." 2 

Black but faithful was the picture the fearless 
lawyer drew of the Government's conduct. 3 He 
dwelt on the devices resorted to for inflaming the 
people against Burr, and after they had been 

1 Burr Trials, n. 128-35. 

2 lb. 168. Another story "propagated through the crowd" was 
that Burr had, by his "emissaries," attempted to poison with lau- 
danum one of the Government's witnesses — this although the partic- 
ular witness had been brought to Richmond to testify only that Wil- 
kinson was not in the pay of Spain. (Blennerhassett Papers: Safford s 
367.) 

3 Burr Trials, n, 164-73. 



500 JOHN MARSHALL 

aroused, the demand that public sentiment be 
heeded and the accused convicted. Was that the 
method of justice! If so, where was the boasted 
beneficence of democracies? Where the righteous- 
ness and wisdom of the people? What did history 
tell us of the justice or mercy of the people? It was 
the people who forced Socrates to drink hemlock, 
banished Aristides, compelled the execution of Ad- 
miral Byng. "Jefferson was run down in 1780 * by 
the voice of the people." If the law of constructive 
treason were to be adopted in America and courts 
were to execute the will of the people, alas for any 
man, however upright and innocent, whom public 
opinion had been falsely led to condemn. 2 

Hay, who had been ill for several days 3 and was 
badly worn, spoke heavily for the greater part of 
two days. 4 His address, though dull, was creditable; 
but he added nothing in thought or authorities to 
Wirt's great speech. His principal point, which he 
repeated interminably, was that the jury must de- 
cide both law and fact. In making this contention 
he declared that Marshall was now asked by Burr's 
counsel to do the very thing for which Chase had 
been impeached. 5 Time and again the District Attor- 
ney insinuated that impeachment would be Mar- 
shall's fate if he did not permit the jury to hear all 
the testimony. 6 

Charles Lee, Attorney-General under President 

1 Botts here refers to the public outcry against Jefferson, while 
Governor during the Revolution, that nearly resulted in his impeach- 
ment. (See vol. I, 143-44, of this work.) 

2 Burr Trials, n, 135-92. 3 lb. 224. 

4 lb. 192-236. 5 lb. 193-94. 6 lb. 200-19, 235. 



WHAT IS TREASON? 501 

Adams, and an intimate friend of Marshall, 1 had 
joined Burr's legal forces some time before. In open- 
ing his otherwise dry argument, Lee called Mar- 
shall's attention to Hay's threat of impeachment. 
The exhausted District Attorney finally denied that 
he meant such a thing, and Marshall mildly ob- 
served: "I did not consider you as making any per- 
sonal allusion, but as merely referring to the law." 2 
Thus, with his kindly tactfulness, Marshall put the 
incident aside. 

On August 28, Luther Martin closed the debate. 
He had been drinking even more than usual through- 
out the proceedings; 3 but never was he in more 
perfect command of all his wonderful powers. No 
outline of his address will be attempted; but a few 
quotations may be illustrative. 

It was the admitted legal right and "indispensa- 
ble duty" of Burr's counsel, began Martin, to make 
the motion to arrest the testimony; yet for doing so 
"we have been denounced throughout the United 
States as attempting to suppress the truth." Our 
act "has been held up to the public and to this jury 
as conclusive proof of our guilt." Such, declared 
the great lawyer, were the methods used to convict 
Burr. 4 He had been in favor, he avowed, of waiving 

1 See vol. II, 201, 428, of this work. 2 Burr Trials, n, 237-80. 

* Blennerhassett, in his diary, makes frequent mention of Martin's 
drinking: "Martin was both yesterday and to-day more in his cups 
than usual, and though he spared neither his prudence nor his feelings, 
he was happy in all his hits." {Blennerhassett Papers: Safford, 438.) 

"I . . recommended our brandy . . placing a pint tumbler before 
him. No ceremonies retarded the libation." (76. 377.) 

"Luther Martin has just made his final immersion into the daily 
bath of his faculties." (lb. 463.) 

4 Burr Trials, n, 260. 



502 JOHN MARSHALL 

"obvious and undeniable rights," and of going on 
with the trial because he was convinced that all the 
evidence would not only clear "his friend," but re- 
move the groundless prejudices which had so wick- 
edly been excited against Burr. But he had yielded 
to the judgment of his associates that the plan 
adopted was more conformable to law. 

"I shall ever feel the sincerest gratitude to heaven, 
that my life has been preserved to this time, and 
that I am enabled to appear . . in his defense." And 
if his fellow counsel and himself should be "success- 
ful in rescuing a gentleman, for whom I with pleasure 
avow my friendship and esteem, from the fangs of 
his persecutors . . what dear delight will my heart 
enjoy! " * Martin thanked Heaven, too, for the boon 
of being permitted to oppose the "destructive" doc- 
trine of treason advanced by the Government. For 
hours he analyzed the British decisions which he 
"thanked God . . are not binding authority in this 
country." He described the origin and growth of the 
doctrine of constructive treason and defined it with 
clearness and precision. 2 It was admitted that Burr 
was not actually present at the time and place at 
which the indictment charged him with having com- 
mitted the crime; but, according to the Government, 
he was "constructively" present. 

With perfect fearlessness Martin attacked Mar- 
shall's objectionable language in the Bollmann and 
Swartwout opinion from the Supreme Bench: "As 
a binding judicial opinion," he accurately declared, 
"it ought to have no more weight than the ballad of 

1 Burr Trials, n, 262. 2 lb. 275-79; see also 339-42, 344-48. 



WHAT IS TREASON? 503 

Chevy Chase." l Deftly he impressed upon Mar- 
shall, Hay's threat of impeachment if the Chief Jus* 
tice should presume to decide in Burr's favor. 2 La- 
menting the popular hostility toward Burr, Martin, 
defied it: "I have with pain heard it said 3 that such 
are the public prejudice against colonel Burr, that 
a jury, even should they be satisfied of his innocence, 
must have considerable firmness of mind to pro- 
nounce him not guilty. I have not heard it without 
horror. 

"God of Heaven! have we already under our form 
of government (which we have so often been told is 
best calculated of all governments to secure all our 
rights) arrived at a period when a trial in a court of 
justice, where life is at stake, shall be but . . a mere 
idle . . ceremony to transfer innocence from the 
gaol to the gibbet, to gratify popular indignation 
excited by bloodthirsty enemies!" 

Martin closed by a personal appeal to Marshall: 
"But if it require in such a situation firmness in a 
jury, so does it equally require fortitude in judges to 
perform their duty. . . If they do not and the pris- 
oner fall a victim, they are guilty of murder in foro 
cceli whatever their guilt may be in foro legis. . . 
May that God who now looks down upon us, and 
who has in his infinite wisdom called you into exist- 
ence and placed you in that seat to dispense justice 
to your fellow citizens, to preserve and protect inno- 
cence against persecution — may that God so illumi- 
nate your understandings that you may know what 

1 Burr Trials, n, 334. 2 lb. 377. 

3 One of those who told Martin this was Marshall himself. See 
supra, 401. 



504 JOHN MARSHALL 

is right; and may he nerve your souls with firmness 
and fortitude to act according to that knowledge." l 

The last word of this notable debate had been 
spoken. 2 The fate of Aaron Burr and of American 
liberty, as affected by the law of treason, now rested 
in the hands of John Marshall. 

On Monday morning, August 31, the Chief Jus- 
tice read his opinion. All Richmond and the multi- 
tude of strangers within her gates knew that the 
proceedings, which for four months had enchained 
the attention of all America, had now reached their 
climax. Burr's friends were fearful, and hoped that 
the laudanum calumny 3 would "strengthen" Mar- 
shall to do his duty. 4 For the moment the passions 
of the throng were in abeyance while the breathless 
spectators listened to Marshall's calm voice as it 
pronounced the fateful words. 

The opinion of the Chief Justice was one of the 
longest ever rendered by him, and the only one in 
which an extensive examination of authorities is 
made. Indeed, a greater number of decisions, trea- 
tises, and histories are referred to than in all the 
rest of Marshall's foremost Constitutional opinions. 
Like every one of these, the Burr opinion was a 
state paper of first importance and marked a critical 
phase in the development of the American Nation. 

Marshall stated the points first to be decided: 
under the Constitution can a man be convicted of 
treason in levying war who was not present when 

1 Burr Trials, n, 377-78. 

2 Randolph made another speech, but it was of no moment. 

3 See supra, footnote to 499. 

* Blennerhassett Papers: Safford, 367. 



WHAT IS TREASON? 505 

the war was levied; and, if so, can testimony be re- 
ceived "to charge one man with the overt acts of 
others until those overt acts as laid in the indictment 
be proved to the satisfaction of the court"? He 
made clear the gravity of the Constitutional ques- 
tion: "In every point of view in which it can be con- 
templated, [it] is of infinite moment to the people of 
this country and their government." 1 

What was the meaning of the words, "'levying 
war'? . . Had their first application to treason been 
made by our constitution they would certainly have 
admitted of some latitude of construction." Even 
so it was obvious that the term "levying war" liter- 
ally meant raising or creating and making war. "It 
would be affirming boldly to say that those only who 
actually constituted a portion of the military force ap- 
pearing in arms could be considered as levying war." 

Suppose the case of "a commissary of purchases" 
for an army raised to make war, who supplied it with 
provisions; would he not "levy war" as much as any 
other officer, although he may never have seen the 
army? The same was true of "a recruiting officer 
holding a commission in the rebel service, who, 
though never in camp, executed the particular duty 
assigned to him." 

But levying war was not for the first time des- 
ignated as treason by the American Constitution. 
"It is a technical term," borrowed from an ancient 
English statute 2 and used in the Constitution in the 
sense understood in that country and this at the 
time our fundamental law was framed. 

1 Burr Trials, n, 401; also in 4 Cranch, 470. 2 25th, of Edward III. 



506 JOHN MARSHALL 

Not only British decisions, but "those celebrated 
elementary writers" whose "books are in the hands 
of every student," and upon which "legal opinions 
are formed" that are "carried to the bar, the bench 
and the legislature " — all must be consulted in as- 
certaining the import of such terms. 1 

Marshall reviewed Coke, Hale, Foster, and Black- 
stone, and found them vague upon the question 
" whether persons not in arms, but taking part in 
a rebellion, could be said to levy war independent of 
that legal rule [of constructive treason] which at- 
taches the guilt of the principal to an accessory." 
Nor were the British decisions more satisfactory: 
"If in adjudged cases this question [has] been . . di- 
rectly decided, the court has not seen those cases." 2 
To trace the origin of " the doctrine that in treason all 
are principals" was unimportant. However "spuri- 
ous," it was the British principle settled for ages. 

The American Constitution, however, "comprizes 
no question respecting principal and accessory" — the 
traitor must "truly and in fact levy war." He must 
"perform a part in the prosecution of the war." 3 

Marshall then gingerly takes up the challenge of 
his opinion in the case of Bollmann and Swartwout. 
Since it had been upon the understanding by the 
grand jury of his language in that opinion that Burr 
had been indicted for treason, and because the Gov- 
ernment relied on it for conviction so far as the prose- 
cution depended on the law, the Chief Justice took 
pains to make clear the disputed passages. 

1 Burr Trials, II, 402-03; 4 Cranch, 470. 

2 Burr Trials, n, 403; 4 Cranch, 471. 

3 Burr Trials, u, 404-05; 4 Cranch, 472. 



WHAT IS TREASON? 507 

"Some gentlemen have argued as if the supreme 
court had adopted the whole doctrine of the English 
books on the subject of accessories to treason. 1 But 
certainly such is not the fact. Those only who per- 
form a part, and who are leagued in the conspiracy, 
are declared to be traitors. To complete the defini- 
tion both circumstances must occur. They must 'per- 
form a part' which will furnish the overt act; and 
they must be 'leagued in the conspiracy.'" 

Did the things proved to have happened on Blen- 
nerhassett's island amount to the overt act of levy- 
ing war? He had heard, said Marshall, that his opin- 
ion in Bollmann and Swartwout was construed as 
meaning that "any assemblage whatever for a trea- 
sonable purpose, whether in force or not in force, 
whether in a condition to use violence or not in that 
condition, is a levying of war." That view of his 
former opinion had not, indeed, "been expressly 
advanced at the bar"; but Marshall understood, he 
said, that "it was adopted elsewhere." 2 

Relying exclusively on reason, all would agree, he 
continued, "that war could not be levied without 
the employment and exhibition of force. . . Inten- 
tion to go to war may be proved by words," but the 
actual going to war must "be proved by open deed." 3 

1 The doctrine that accessories are as guilty as principals. 

2 Burr Trials, n, 406-08; 4 Cranch, 476. This reference is to Jef- 
ferson's explanation of Marshall's opinion in Bollmann and Swart- 
wout, which Giles and other Republican leaders were proclaiming 
throughout Virginia. It had been adopted by the grand jury; and it 
was this construction of Marshall's language under which they re- 
turned the bills of indictment for treason. Had the grand jury under- 
stood the law to be as Marshall was now expounding it, Burr would 
not have been indicted for treason. 

3 Burr Trials, n, 409; 4 Cranch, 476. 



508 JOHN MARSHALL 

This natural and reasonable understanding of the 
term was supported by the authorities. Marshall 
then made specific reference to the opinions of a 
large number of British writers and judges, and of 
all American judges who had passed upon the ques- 
tion. In none of these, he asserted, had "the words 
* levying war' . . received a technical different from 
their natural meaning" 1 — that is, "the employ- 
ment and exhibition of force." 

Had he overruled all these opinions in the Boll- 
mann-Swartwout case? Had he, in addition, re- 
versed the natural interpretation of the Constitution 
which reason dictated? Surely not! Yet this was 
what he was now charged with having done. 

But, said Marshall, "an opinion which is to over- 
rule all former precedents, and to establish a prin- 
ciple never before recognized, should be expressed 
in plain and explicit terms." A mere implication 
was not enough. Yet this was all there was to justify 
the erroneous construction of his opinion in the case 
of Bollmann and Swartwout — "the omission of 
the court to state that the assemblage which con- 
stitutes the fact of levying war ought to be in 
force." 2 

Marshall then went into an extended and mi- 
nute analysis of his misunderstood opinion, and 
painfully labored to show that he then intended to 
say, as he now did say: that the act of levying war 
required "an assemblage in force," and not merely 
"a secret furtive assemblage without the appearance 

1 Burr Trials, u, 409-13; 4 Cranch, 477-80. 

2 Burr Trials, u, 415; 4 Cranch, 481. 



WHAT IS TREASON? 509 

of force." The gathering "must be such as to prove 
that [war] is its object." If it was not "a military 
assemblage in a condition to make war, it was not a 
levying of war." * 

The indictment charged Burr with having levied 
war at a specific place and stated the exact manner 
in which the act had been done; this was necessary; 
otherwise the accused could not make adequate de- 
fense. So the indictment "must be proved as laid"; 
otherwise "the charge of an overt act would be a 
mischief instead of an advantage to the accused," 
and would lead him from the true cause and na- 
ture of the accusation instead of informing him 
respecting it. 2 

The Government insisted that, although Burr 
"had never been with the party . . on Blennerhas- 
sett's island, and was, at the time, at a great distance 
and in a different state, . . he was yet legally present, 
and therefore may properly be charged in the indict- 
ment as being present in fact." Thus, the question 
arose "whether in this case the doctrine of construc- 
tive presence can apply." In answering it, John 
Marshall ended the contention that so cruel a dogma 
can ever be applied in America. This achievement 
was one of his noblest services to the American 
people. 3 

Again an imposing array of precedents was ex- 
amined. "The man, who incites, aids, or procures 
a treasonable act," is not, merely on that account, 

1 Burr Trials, u, 415-23; 4 Cranch, 482-88. 

2 Burr Trials, n, 425; 4 Cranch, 490. 

3 This part of Marshall's opinion (Burr Trials, n, 425-34; 4 Cranch, 
490-504) is reproduced in full in Appendix F. 



510 JOHN MARSHALL 

"legally present when that act is committed." * Of 
course, other facts might require that a man should 
be considered to be present although really absent; 
for example, if he were on the way there for the 
purpose of taking part in the specific act charged, 
or if he were stationed near in order to cooperate 
with those who actually did the deed, he would be 
of them and associated with them in the perpetra- 
tion of that particular act. 2 But otherwise he could 
not be said to be present. 

If this were not so, then a man levying war in one 
part of the country might be construed to be present 
at and taking part in hostilities at the most distant 
point of the Republic — a participator in "every 
overt act performed anywhere"; and he would be 
liable to trial and conviction "in any state on the 
continent where any overt act has been committed" 
by anybody. "He may be proved to be guilty of an 
overt act laid in the indictment in which he had no 
personal participation, by proving that he advised 
it, or that he committed other acts." 3 

If Burr were guilty of treason in connection with 
the assemblage on Blennerhassett's island, it was 
only because Burr procured the men to meet for the 
purpose of levying war against the United States . 
But the fact that he did procure the treasonable 
assemblage must be charged in the indictment and 
proved by two witnesses, precisely as must actual 
physical presence — since the procuring of the as- 
semblage takes the place of presence at it. "If in 

1 Burr Trials, n, 426; 4 Cranch, 492. 
3 Burr Trials, n, 429; 4 Cranch, 494. 
3 Burr Trials, n, 430; 4 Cranch, 495. 



WHAT IS TREASON? 511 

one case," declared Marshall, "the presence of the 
individual make the guilt of the assemblage his 
guilt, and in the other case the procurement by the 
individual make the guilt of the assemblage his 
guilt, then presence and procurement are equally 
component parts of the overt act, and equally re- 
quire two witnesses." 1 

Neither presence nor procurement could, there- 
fore, be proved by collateral testimony: "No pre- 
sumptive evidence, no facts from which presence 
may be conjectured or inferred will satisfy the con- 
stitution and the law." And "if procurement take 
the place of presence and become part of the overt 
act, then no presumptive evidence, no facts from 
which the procurement may be conjectured, or in- 
ferred, can satisfy the constitution and the law. 

" The mind is not to be led to the conclusion that 
the individual was present by a train of conjectures, 
of inferences, or of reasoning; the fact must be proved 
by two witnesses," as required by the Constitution. 
"Neither, where procurement supplies the want of 
presence, is the mind to be conducted to the conclu- 
sion that the accused procured the assembly, by a 
train of conjectures or inferences or of reasoning; the 
fact itself must be proved by two witnesses." 2 

To the objection that this could "scarcely ever" 
be done, since "the advising or procurement of 
treason is a secret transaction," the answer was, 

1 Burr Trials, n, 436; 4 Cranch, 500. 

2 Burr Trials, n, 436-37; 4 Cranch, 500. These paragraphs furnish 
a perfect example of Marshall's method of statement and logic — 
the exact antithesis plainly put, the repetition of precise words with 
only the resistless monosyllables, "if" and "then," between them. 



512 JOHN MARSHALL 

said Marshall, "that the difficulty of proving a fact 
will not justify conviction without proof." And 
most "certainly it will not justify conviction without 
[one] direct and positive witness in a case where the 
constitution requires two." The true inference from 
"this circumstance" was "that the advising of the 
fact is not within the constitutional definition of the 
crime. To advise or procure a treason . . is not 
treason in itself." * 

The testimony which the Government now pro- 
posed to offer was to "prove — what? the overt act 
laid in the indictment? that the prisoner was one 
of those who assembled at Blennerhassett's island? 
No!" But, instead, "evidence [of] subsequent trans- 
actions at a different place and in a different state." 
But such "testimony was not relevant." If it could 
be introduced at all, it would be "only in the char- 
acter of corroborative or confirmatory testimony, 
after the overt act has been proved by two witnesses 
in such a manner that the question of fact ought to 
be left with the jury." 2 

Before closing, Marshall answered the threats of 
Hay and Wirt that, if he decided in favor of Burr, 
he would be impeached: "That this court dares not 
usurp power is most true. That this court dares not 
shrink from its duty is not less true. . . No man is 
desirous of becoming the peculiar subject of cal- 
umny. No man, might he let the bitter cup pass 
from him without self reproach, would drain it to the 
bottom. But if he have no choice in the case, if there 

1 Burr Trials, n, 437; 4 Cranch, 501. 

2 Burr Trials, n, 443; 4 Cranch, 506. 



WHAT IS TREASON? 513 

be no alternative presented to him but a dereliction 
of duty or the opprobrium of those who are denom- 
inated the world, he merits the contempt as well 
as the indignation of his country who can hesitate 
which to embrace." ! 

Let the jury apply the law as announced to the 
facts as proved and "find a verdict of guilty or not 
guilty as their own consciences shall direct." 

The next morning the petit jury retired, but 
quickly returned. Marshall's brother-in-law, Colo- 
nel Edward Carrington, foreman, rose and informed 
the court that the jury had agreed upon a verdict. 

"Let it be read," gravely ordered Marshall. 

And Colonel Carrington read the words of that 
peculiar verdict: 

"We of the jury say that Aaron Burr is not 
proved to be guilty under this indictment by any 
evidence submitted to us. We therefore find him 
not guilty." 2 

Instantly Burr, Martin, W r ickham, and Botts were 
on their feet protesting. This was no verdict, ac- 
cording to law. It was informal, irregular. In such 
cases, said Burr, the jury always was sent back to 
alter it or else the court itself corrected it; and he 
accurately stated the proper procedure. 

Discussion followed. Hay insisted that the ver- 
dict be received and recorded as returned. "It was 
like the whole play," exclaimed Martin, "Much 
Ado About Nothing." Of course the verdict must 
be corrected. Did the jury mean to "censure . . the 
court for suppressing irrelevant testimony?" Un- 

1 Burr Trials, u, 444-45; 4 Cranch, 507. 2 Burr Trials, n, 446. 



514 JOHN MARSHALL 

thinkable ! And if not, they ought to answer simply 
"Guilty" or "Not Guilty." 1 

Colonel Carrington informed the court that, 
among themselves, the jury had said that "they 
would alter the verdict if it was informal — it was 
in fact a verdict of acquittal." Richard E. Parker, 
also of the jury, said he never would agree to change 
the form — they knew what they were about when 
they adopted it. Parker was "a violent Jeffersonian 
partisan," and Burr's friends had reproved him for 
accepting such a man as a member of the jury. 2 

Soothingly Marshall directed that the verdict 
"stand on the bill" as the jury wished it; but, since 
it was "in effect a verdict of acquittal," let "an 
entry be made on the record of 'Not Guilty.'" 

The Chief Justice "politely thanked the jury for 
their patient attention during the whole course of 
this long trial, and then discharged them." 3 

A week before Marshall delivered his opinion, an 
attempt was made to induce Blennerhassett to be- 
tray Burr. On August 23 William Duane, editor of 
the Aurora, and an intimate friend, supporter, and 
agent of Jefferson, approached Blennerhassett for 
that purpose, and offered to go to Washington, "now 
or at any time hereafter," in his behalf. Duane as- 
sured him that the Administration would refuse him 
(Duane) "nothing he should ask." But Blennerhas- 
sett repulsed Duane's advances. 4 

1 Burr Trials, n, 446-47. Martin was right; the verdict should have 
been either "guilty" or "not guilty." 

2 Blennerhassett Papers: Safford, 339. 

3 Burr Trials, n, 447. 

4 Blennerhassett Papers: Safford, 356-58; and see Adams: U.S. in, 



WHAT IS TREASON? 515 

Hay, angry and discomfited, entered a nolle pro- 
sequi to the indictments of Dayton, Blennerhassett, 
and the others for the same crime; but, in obedience 
to Jefferson's orders, demanded that all of them, 
Burr included, be still held under the charge of trea- 
son, that they might be sent for trial to some place 
where an overt act might have been committed. 1 
Marshall, after enduring another long argument, 
gently put the application aside because all the con- 
spirators were now to be tried upon the charge of 
misdemeanor under the second indictment. 2 

Marshall's motives were clearer than ever to Jef- 
ferson. "The event has been what was evidently in- 
tended from the beginning of the trial; . . not only 
to clear Burr, but to prevent the evidence from ever 
going before the world. . But this latter case must 
not take place." Hay must see to it that "not a 
single witness be paid or permitted to depart until 
his testimony has been committed to writing. . . 
These whole proceedings will be laid before Congress, 
that they may . . provide the proper remedy." 3 

Jefferson ordered Hay to press for trial on the in- 
dictment for misdemeanor, not with the expectation 
of convicting Burr, but in the hope that some sort of 

448, 464-65. Duane was known to have unbounded influence with 
Jefferson, who ascribed his election to the powerful support given him 
by the Aurora. 

Government agents also tried to seduce Colonel de Pestre, another 
of Burr's friends, by insinuating "how handsomely the Col. might be 
provided for in the army, if his principles . . were not adverse to the 
administration." De Pestre's brother-in-law "had been turned out 
of his place as Clerk in the War Office, because he could not accuse 
the Col. of Burr-ism." {Blennerhassett Papers: Safford, 328-29.) 

1 Burr Trials, n, 448-49. 2 lb. 455. 

8 Jefferson to Hay, Sept. 4, 1807, as quoted in Adams, U.S. III, 470; 
and see Jefferson: Randolph, IV, 102. ,.-■ 



516 JOHN MARSHALL 

testimony would be brought out that would convict 
Marshall in the court of public opinion, and perhaps 
serve as a pretext for impeaching him. Thus, in the 
second trial of which we are now to be spectators, 
"the chief -justice was occupied in hearing testimony 
intended for use not against Burr, but against him- 
self." * It was for this reason that Marshall, when 
the trial for misdemeanor began, threw open wide 
the doors to testimony. 2 

Burr's counsel, made unwise by victory, insisted 
that he should not be required to give bail, and Mar- 
shall, although the point had been decided and was 
not open to dispute, permitted and actually encour- 
aged exasperatingly extended argument upon it. 3 
Burr had submitted to give bail at the beginning, 
said Botts, not because it was "demandable of 
right," but because he and his counsel "had reason 
to apprehend danger . . from the violence and tur- 
bulence of the mob." 4 

Marshall was careful to deliver another long and, 
except for the political effect, wholly unnecessary 
opinion; nor was it directly on the matter at issue. 
Counsel floundered through a tangle of questions, 
Marshall exhibiting apparent indecision by mani- 
festing great concern, even on the simplest points. 

1 Adams: U.S. in, 470. 2 See infra, 524. 

3 Burr Trials, n, 473-80. 

4 76. 480. This statement of Botts is of first importance. The whole 
proceeding on the part of the Government was conspicuously marked 
by a reliance upon public sentiment to influence court and jury 
through unceasing efforts to keep burning the fires of popular fear 
and hatred of Burr, first lighted by Jefferson's Proclamation and Mes- 
sage. Much repetition of this fact is essential, since the nature and 
meaning of the Burr trial rests upon it. 



WHAT IS TREASON? 517 

Finally, he ordered that Burr "be acquitted and dis- 
charged" as to the indictment for treason, but to be 
held in five thousand dollars bail under the indict- 
ment for misdemeanor. Jonathan Dayton and Wil- 
liam Langbourne offered themselves and were ac- 
cepted as sureties; and on September 3, after nearly 
nine weeks of imprisonment, Burr walked out of 
court unhindered, no longer to be under lock and 
bar and armed guard. 1 

Merry were the scenes in the houses of Richmond 
society that night; hilarious the rejoicing about the 
flowing board of Luther Martin; and, confused and 
afflicted with a blurred anger, the patriotic multi- 
tude talked resentfully of Marshall's decision. On 
one side it was said that justice had prevailed and 
persecution had been defeated; on the other, that 
justice had been mocked and treason protected. Hay, 
W T irt, and MacRae were bitter and despondent; 
Edmund Randolph, Botts, Martin, and Burr, jubi- 
lant and aggressive. 

Many conflicting stories sprang up concerning 
Marshall — his majestic bearing on the bench, his 
servility, his courage, his timidity. One of these has 
survived: "W 7 hy did you not tell Judge Marshall 
that the people of America demanded a conviction? " 
a disgusted Republican asked of W 7 irt. "Tell him 
that! " exclaimed W irt. "I would as soon have gone 
to Herschel, and told him that the people of America 
insisted that the moon had horns as a reason why he 
should draw her with them." 2 

1 Burr Trials, n, 481-503. 

2 Van Santvoord: Sketches of the Lives and Judicial Services of the 



518 JOHN MARSHALL 

The captain of the "conspiracy" had never lost 
heart, and, save when angered by Marshall's seeming 
inconsistency and indecision , had continued to be 
cheery and buoyant. Steadily he had assured his 
friends that, when acquitted, he would again take 
up and put through his plans. This thought now 
dominated him. Blennerhassett, upon visiting his 
chief, found Burr "as gay as usual, and as busy in 
speculations on reorganizing his projects for action 
as if he had never suffered the least interruption," 
with better prospects for success than ever. 1 

Quick to press his advantage, Burr the next morn- 
ing demanded the production of the letters called 
for in the subpoena duces tecum to Jefferson. These 
had not been forthcoming, and Burr asserted the 
President to be in contempt of court and subject to 
punishment therefor. 2 Once more altercation flared 
up in debate. Hay said he had one of the letters; 
that it had not "the most distant bearing on the 
subject," and that he might prefer "to be put in 
prison" rather than disclose its contents. 3 

Jefferson had become very nervous about Mar- 
shall's order and plainly feared that the Chief Jus- 
tice might attempt to enforce it. The thought fright- 
ened him; he had no stomach for a direct encounter. 
At last he wished to compose the differences between 
himself and the obstinate and fearless, if gentle- 
mannered, Marshall. So the President directed his 

Chief -Justices of the United States, 379. Yet popular sentiment was 
the burden of many of the speeches of Government counsel throughout 
the trial. 

1 Blennerhassett Papers: Safford, 402. 

2 Burr Trials, n, 504. 3 lb. 511. 



WHAT IS TREASON? 519 

district attorney to tell the United States Marshal 
to obey no order of the court and to intimate to 
the Chief Justice the wisdom of deferring the vexed 
question until the next session of Congress. 

He wrote, said Jefferson, "in a spirit of concilia- 
tion and with the desire to avoid conflicts of author- 
ity between the high branches of the government 
which would discredit equally at home and abroad." 
Naturally Burr and his counsel would like "to con- 
vert this trial into a contest between the judiciary & 
Exve Authorities"; but he had not "expected . . 
that the Ch. Justice would lend himself to it." 
Surely Marshall's "prudence and good sense" would 
not "permit him to press it." 

But if Marshall was determined to attack Jeffer- 
son and "issue any process which [would] involve 
any act of force to be committed on the persons of 
the Exve or heads of departs," Hay was to give 
Jefferson "instant notice, and by express if you find 
that can be done quicker than by post; and . . more- 
over . . advise the marshal on his conduct as he will 
be critically placed between us." 

The "safest way" for that officer to pursue "will 
be to take no part in the exercise of any act of force 
ordered in this case. The powers given the Exve by 
the constn are sufficient to protect the other branches 
from judiciary usurpation of pre-eminence, & every 
individual also from judiciary vengeance, and the 
marshal may be assured of it's effective exercise to 
cover him." 

Such was Jefferson's threat to use force against 
the execution of the process of the National courts. 



520 JOHN MARSHALL 

But the President went on: "I hope however that 
the discretion of the C. J. will suffer this question to 
lie over for the present, and at the ensuing session 
of the legislature [Congress] he may have means 
provided for giving individuals the benefit of the 
testimony of the Exve functionaries in proper cases, 
without breaking up the government. Will not the 
associate judge [Cyrus Griffin] assume to divide his 
court and procure a truce at least in so critical a 
conjuncture ? " 1 

When Hay acknowledged that he had one of the 
letters from Wilkinson to Jefferson, a subpoena duces 
tecum was served on the District Attorney, not- 
withstanding his gallant declaration that he would 
not produce it even if he were sent to jail for not 
doing so. Hay then returned a copy of such parts of 
the letter as he thought "material for the purposes 
of justice," declining to give those passages which 
Jefferson deemed "confidential." 2 Burr insisted on 
the production of the entire letter. 

Botts moved that the trial be postponed "till the 
letter shall be produced." Another of that unending 
series of arguments followed, 3 and still another of 
Marshall's cautious but convincing opinions came 

1 Jefferson to Hay, no date; but Paul Leicester Ford fixes it between 
August 7 and 20, 1807. It is, says Ford, "the mere draft of a letter , . 
which may never have been sent, but which is of the utmost impor- 
tance." (Works: Ford, x, 406-07.) It would seem that Jeff erson wrote 
either to Marshall or Judge Griffin personally, for the first words of his 
astounding letter to Hay were: "The enclosed letter is written in a 
spirit of conciliation," etc., etc. Whether or not the President actually 
posted the letter to Hay, the draft quoted in the text shows the im- 
pression which Marshall's order made on Jefferson. (Italics the 
author's.) 

2 Burr Trials, n, 513-14. 3 lb. 514-33. 



WHAT IS TREASON? 521 

forth. Jefferson, he said, had not forbidden the pro- 
duction of the letter — the President, in response to 
the subpoena upon him, had sent the document to 
Hay, leaving to the discretion of the District Attorney 
the question as to what should be done with it. Of 
course if, for public reasons, Jefferson had declined 
to produce the letter, his "motives may [have been] 
such as to restrain the court" from compelling him 
to do so. 1 At least Burr might see the letter now; 
consideration of the other features of the controversy 
would be deferred. 2 

The distracted Hay, his sour temper made more 
acid by a "greatly aggravated influenza," wrote 
Jefferson of the Government's predicament; Mar- 
shall's remarks from the bench had not been explicit, 
he said, and "it is impossible to foresee what his 
opinion will be unless I could foresee what will be 
the state of his nerves. Wirt, who has hitherto ad- 
vocated the integrity of the Chief Justice, now 
abandons him." 

The District Attorney dolefully tells the President 
that he is "very decidedly of the opinion, that these 
prosecutions will terminate in nothing." He thinks 
the Government will be defeated on the trials for 
misdemeanor, and believes the indictments for that 
offense should be dismissed and motion made for 
the commitment of Burr, Blennerhassett, and Smith 
to be transferred to some spot where their crime 

1 This remark of Marshall would seem to indicate that Hay 
had tried to patch up "a truce" between the President and the 
Chief Justice, as Jefferson desired him to do. If so, it soon ex< 
pired. 

2 Burr Trials, n, 533-37. 



522 JOHN MARSHALL 

might be proved. "Instruct me," he begs Jefferson, 
"specially on this point." 1 

Jefferson, now on his vacation at Monticello, 
directed Hay to press at Richmond the trial of 
Burr for misdemeanor. "If defeated it will heap 
coals of fire on the head of the judge; if convicted, 
it will give them time to see whether a prosecu- 
tion for treason can be instituted against him in 
any, and what court." A second subpoena duces 
tecum seems to have been issued against Jefferson, 2 
and he defiantly refused to "sanction a proceeding 
so preposterous," by "any notice" of it. 3 And there 
this heated and dangerous controversy appears to 
have ended. 4 

Finally, the hearing of evidence began on the in- 
dictment against Burr for misdemeanor — for having 
conducted an attack upon Mexico. For seven weeks 
the struggle went on. The Government's attorneys 
showed the effects of the long and losing fight. Many 
witnesses were sent home unexamined or merely leav- 
ing their affidavits. Hay acted like the sick man he 
really was. The dour MacRae appeared "utterly 
chop-fallen; an object of disgust to his friends, and 
pity to his enemies." 5 Only Wirt, with his fine gal- 
lantry of spirit, bore himself manfully. Motions, 

1 Hay to Jefferson, Sept. 5, 1807, Jefferson MSS. Lib. Cong. 

2 The printed record does not show this, but Jefferson, in his letter 
to Hay, September 7, says: "I received, late last night, your favor of 
the day before, and now re-enclose you the subpoena." 

3 Jefferson to Hay, Sept. 7, 1807, Works: Ford, x, 408. 

4 For some reason the matter was not again pressed. Perhaps the 
favorable progress of the case relieved Burr's anxiety. It is possible 
that the "truce" so earnestly desired by Jefferson was arranged. 

5 Blennerhassett Papers; Safford, 394. 



WHAT IS TREASON? 523 

arguments, opinions continued. One of Marshall's 
rulings on the admissibility of evidence moved Blen- 
nerhassett to ecstasies. 1 

More than fifty witnesses were examined, the 
heavy preponderance of the evidence clearly show- 
ing that Burr's purpose and expectations had been 
to settle the Washita lands and, in case the United 
States went to war with Spain, and only in that 
event, to lead a force against the Spaniards. No 
testimony whatever was given tending to disclose 
any hostile plans against the United States, or even 
for an attack upon Mexico without war between 
America and Spain, except that of Wilkinson, Eaton, 
Taylor, Allbright, and the Morgans, as already set 
out. One witness also told of a wild and fanciful talk 
by the eccentric and imaginative Blennerhassett. 2 

The credibility of Dunbaugh was destroyed. Wil- 
kinson was exposed in a despicable light, 3 and Eaton 
appeared more fantastic than ever; but both these 
heroes put on looks of lofty defiance. The warrior- 
diplomat of Algerian fame had now fallen so low in 
the public esteem that one disgusted Virginian had 
threatened to kick him out of a room. 4 

On September 15, 1807, the District Attorney, by 

1 "Today, the Chief Justice has delivered an able, full, and lumi- 
nous opinion as ever did honor to a judge, which has put an end to the 
present prosecution." {Blennerhassett Papers: Safford, 403.) 

2 Annals, 10th Cong. 1st Sess. 416-19. 

3 This appears from the record itself. (See Wilkinson's testimony, 
ib. 512-44; also testimony of Major James Bruff, ib. 589-90.) Blenner- 
hassett, who usually reported faithfully the general impression, notes 
in his diary: "The General exhibited the manner of a sergeant under a 
courtmartial, rather than the demeanor of an accusing officer con- 
fronted with his culprit." (Blennerhassett Papers: Safford, 422.) 

* Ib. 418. 



524 JOHN MARSHALL 

attempting to enter a nolle prosequi on the indict- 
ment of Burr for misdemeanor, tried to prevent 
the jury from rendering a verdict. 1 One member 
of the jury wanted that body to return a special 
finding; but his associates would have none of it, 
and in half an hour they reported a straight verdict 
of "Not Guilty." 2 

Hay dismissed further proceedings against Smith 
and Blennerhassett on the indictments for misde- 
meanor, and then moved to commit Burr and his 
associates upon the charge of treason by "levying 
war" within the jurisdiction of the United States 
Court for the District of Ohio. 3 On this motion, 
Marshall, as an examining magistrate, gave the 
Government wide scope in the introduction of testi- 
mony, to the immense disgust of the triply accused 
men. Blennerhassett thought that Marshall was 
conciliating "public prejudice." 4 Burr told his 
counsel that the Chief Justice "did not for two days 
together understand either the questions or himself 
. . and should in future be put right by strong lan- 
guage." So angered was he with Marshall's "wa- 
vering," that at times "Burr . . would not trust 
himself to rise up to sum up and condense the forces 
displayed by his counsel, into compact columns, 
after the engagement, toward the close of the day, 
as is generally his practice." 5 

Just at this time appeared a pamphlet 6 by Mar- 

1 Record, MSS. Archives U.S. Circuit Court, Richmond, Va. 

2 Blennerhassett Papers: Safford, 404. 

3 lb. 409-10. 4 lb. 416. 5 lb. 412-13. 

6 Daveiss: "A View of the President's Conduct Concerning the 
Conspiracy of 1806." 



WHAT IS TREASON? 525 

shall's brother-in-law, Joseph Hamilton Daveiss. 
Jefferson had removed him from the office of United 
States Attorney for the District of Kentucky be- 
cause of Daveiss's failure in his attacks on Burr, 
and the revengeful Federalist lawyer and politician 
retaliated by abusing the President, Wilkinson, and 
Burr equally. Between Daveiss's pamphlet and 
Marshall's sudden admission of evidence, some saw 
a direct connection; the previous knowledge Mar- 
shall must have had of his brother-in-law's intended 
assault, inferred because of "the well-known spirit of 
clanship and co-operation with which the Marshalls 
and all their connections are so uniformly animated,"' 
showed, it was alleged, that the Chief Justice was 
working with his kinsman to bring down in indiscrim- 
inate ruin, Jefferson, Burr, and Wilkinson together. 

The last volume of Marshall's "Life of Wash- 
ington," that "five volumed libel," as Jefferson 
branded the biography, had recently appeared. 
Blennerhassett, who, in expressing his own opinions, 
usually reflected those of his associates, had "no 
doubt" that the President's perusal of Marshall's 
last volume and Daveiss's pamphlet "inspired Jef- 
ferson with a more deadly hatred of the Marshall 
faction than he has ever conceived of all the Burrites 
he ever heard of." 2 

The President's partisans in Virginia were prompt 
to stoke the furnace of his wrath. William Thomp- 
son of Petersburgh 3 wrote a brief "view" of the 

1 Blennerhassett Papers: Safford, 465-66. 2 lb. 502. 

3 The brother of John Thompson, author of "The Letters of Cur- 
tius" which attacked Marshall in 1798. (See vol. n, 395-96, of this 
work.) 



526 JOHN MARSHALL 

Burr trial and sent "the first 72. pages" to Jefferson, 
who read them "with great satisfaction" and clam- 
ored for more. 1 Marshall's conduct should indeed 
fill everybody "with alarm," wrote Jefferson in 
reply. "We had supposed we possessed fixed laws 
to guard us equally against treason & oppression. 
But it now appears we have no law but the will of the 
judge. Never will chicanery have a more difficult 
task than has been now accomplished to warp the 
text of the law to the will of him who is to construe 
it. Our case too is the more desperate as to attempt 
to make the law plainer by amendment is only 
throwing out new materials for sophistry." 2 

The Federalists in Washington, fast dwindling in 
power and number, experienced as much relief as 
their chronic melancholia permitted them to enjoy. 
"Had the late vice president and two senators been 
convicted and executed for treason, it would in the 
opinion of Europe, have reflected disgrace upon our 
country," notes Senator Plumer in his diary. 3 

Hay, on the other hand, thought that "a correct 
and perspicuous legal history of this trial would be a 
valuable document in the hands of intelligent legis- 
lators," but that "among others it might perhaps do 
mischief. It might produce a sentiment toward all 
judicial system and law itself, the operation of 
which might perhaps be fatal to the tranquillity and 
good order of Society." 4 

1 Thompson's "view" was published as a series of letters to Mar- 
shall immediately after the trial closed. (See infra, 533-35.) 

2 Jefferson to Thompson, September 26, 1807, Works: Ford, x, 
501-02. 

3 Plumer, Aug. 15, 1807, " Diary," Plumer MSS. Lib. Cong. 

4 Hay to Jefferson, Oct. 15, 1807, Jefferson MSS. Lib. Cong. 



WHAT IS TREASON? 527 

On October 20, Marshall delivered his last opin- 
ion in the Burr trials. It was upon the Government's 
motion to commit Burr and his associates for trea- 
son and misdemeanor committed on the dismal island 
at the mouth of the Cumberland, where Burr had 
first greeted his little band of settlers and potential 
adventurers. He must grant the motion, Marshall 
said, "unless it was perfectly clear that the act was 
innocent." If there was any doubt, the accused must 
be held. The Chief Justice then carefully analyzed 
all the evidence. 1 He concluded that Burr's pur- 
poses were to settle the Washita lands and to in- 
vade Mexico if opportunity offered, perhaps, how- 
ever, only in the event of war with Spain. But 
whether this was so ought to be left to the jury; 
Marshall would "make no comment upon it which 
might, the one way or the other, influence their judg- 
ment." 2 He therefore would commit Burr and Blen- 
nerhassett "for preparing and providing the means 
for a military expedition" against Spain. 

"After all, this is a sort of drawn battle," Burr 
informed Theodosia. "This opinion was a matter of 
regret and surprise to the friends of the chief justice 
and of ridicule to his enemies — all believing that it 
was a sacrifice of principle to conciliate Jack Cade. 
Mr. Hay immediately said that he should advise the 
government to desist from further prosecution." 3 

1 This statement is lucid, conspicuously fair, and, in the public 
mind, would have cleared Burr of any taint of treason, had not 
Jefferson already crystallized public sentiment into an irrevocable 
conviction that he was a traitor. (See Annals, 10th Cong. 1st Sess. 
766-78.) 

2 lb. 

3 Burr to his daughter, Oct. 23, 1807, Davis, n, 411-12. 



528 JOHN MARSHALL 

If Marshall disappointed Burr, he infuriated Jef- 
ferson. In the closing words of his opinion the Chief 
Justice flung at the President this challenge: "If 
those whose province and duty it is to prosecute of- 
fenders against the laws of the United States shall be 
of the opinion that a crime of a deeper dye has been 
committed, it is at their choice to act in conformity 
with that opinion" — ■ in short, let Jefferson now do 
his worst. 

Marshall's final opinion and his commitment of 
Burr, under bail, to be tried in Ohio for possible mis- 
demeanor at the mouth of the Cumberland should 
a grand jury indict him for that offense, disgusted 
Burr. Indeed he was so "exasperated" that "he 
was rude and insulting to the Judge." l Nor did 
Marshall's friends in Richmond feel differently. 
They "are as much dissatisfied," records Blenner- 
hassett, " with his opinion yesterday as Government 
has been with all Ins former decisions. He is a good 
man, and an able lawyer, but timid and yielding 
under the fear of the multitude, led . . by the vindic- 
tive spirit of the party in power." 2 

Burr gave the bond of five thousand dollars re- 
quired by Marshall, but in Ohio the Government 
declined to pursue the prosecution. 3 Burr put the 

1 Hay to Jefferson. Oct. 21, 1807, Jefferson MSS. Lib. Cong. 

2 Blennerhassett Papers: Safford, 301. If this were only the per- 
sonal opinion of Burr's gifted but untrustworthy associate, it would 
not be weighty. But Blennerhassett's views while at Richmond, as 
recorded in his diary, were those of all of Burr's counsel and of the 
Richmond Federalists. 

3 No wonder the Government abandoned the case. Nearly all the 
depositions procured by Hay under Jefferson's orders demonstrated 
that Burr had not the faintest intention of separating the Western 



WHAT IS TREASON? 529 

whole matter out of his mind as a closed incident, 
left Richmond, and started anew upon the execution 
of his one great plan as though the interruption of 
it had never happened. 

Marshall hurried away to the Blue Ridge. "The 
day after the commitment of Col°. Burr for a mis- 
demeanor I galloped to the mountains," he tells 
Judge Peters. During the trial Peters had sent Mar- 
shall a volume of his admiralty decisions; and when 
he returned from his belated vacation, the Chief 
Justice acknowledged the courtesy: "I have as yet 
been able only to peep into the book. . . I received it 
while fatigued and occupied with the most unpleas- 
ant case which has ever been brought before a Judge 
in this or perhaps any other country, which affected 
to be governed by laws, since the decision of which 
I have been entirely from home. . . I only returned in 
time to perform my North Carolina Circuit which 
terminates just soon enough to enable me to be here 
to open the Court for the antient dominion. Thus 
you perceive I have sufficient bodily employment 
to prevent my mind from perplexing itself about the 
attentions paid me in Baltimore and elsewhere. 1 

"I wish I could have had as fair an opportunity to 
let the business go off as a jest here as you seem to 
have had in Pennsylvania: but it was most deplor- 
ably serious & I could not give the subject a different 

States from the Union, or even of attacking Mexico unless war broke 
out between Spain and the United States. See particularly deposition 
of Benjamin Stoddert of Maryland, October 9, 1807 {Quarterly Pub. 
Hist, and Phil. Soc. Ohio, ix, nos. 1 and 2, 7-9) ; of General Edward 
Tupper of Ohio, September 7, 1807 (ib. 13-27); and of Paul H. M. 
Prevost of New Jersey, September 28, 1807 (ib. 28-30). 
1 See infra, 53G. 



530 JOHN MARSHALL 

aspect by treating it in any manner which was in my 
power. I might perhaps have made it less serious to 
my self by obeying the public will instead of the 
public law & throwing a little more of the sombre 
upon others." x 

While Marshall was resting in the mountains, 
Jefferson was writing his reply to the last challenge 
of the Chief Justice. 2 In his Message to Congress 
which he prepared immediately after the Burr trials, 
he urged the House to impeach Marshall. He felt 
it to be his duty, he said, to transmit a record of 
the Burr trial. " Truth & duty alone extort the obser- 
vation that wherever the laws were appealed to in aid of 
the public safety, their operation was on behalf of those 
only against whom they were invoked." From the re- 
cord "y° u w iU De enabled to judge whether the de- 
fect was in the testimony, or in the laws, or whether 
there is not a radical defect in the administration of 
the law? And wherever it shall be found the legisla- 
ture alone can apply or originate the remedy. 

"The framers of our constitution certainly sup- 
posed they had guarded, as well their government 
against destruction by treason, as their citizens 
against oppression under pretence of it : and if the 
pliability of the law as construed in the case of Fries, 3 
and it's wonderful refractoriness as construed in that 
of Burr, shew that neither end has been attained, and 
induce an awful doubt whether we all live under the 

1 Marshall to Peters, Nov. 23, 1807, Peters MSS. Pa. Hist. Soc. 

2 Hay, for the moment mollified by Marshall's award of two thou- 
sand dollars as his fee, had made no further complaint for several 
days. 

3 See supra, chap. I, 35-36; also vol. n, 429-30, of this work. 



WHAT IS TREASON? 531 

same laiD. The right of the jury too to decide law as well 
as fact seems nugatory without the evidence pertinent to 
their sense of the law. If these ends are not attained 
it becomes worthy of enquiry by what means more 
effectual they may be secured?" * 

On the advice of his Cabinet, 2 Jefferson struck 
out from the Message the sentences italicized above. 
But even with this strong language omitted, Con- 
gress was told to impeach Marshall in far more 
emphatic terms than those by which Jefferson had 
directed the impeachment of Pickering — in plainer 
words, indeed, than those privately written to 
Nicholson ordering the attack upon Chase. Jeffer- 
son's assault on Marshall was also inserted in a Mes- 
sage dealing with probable war against Great Britain 
and setting out the continuance of our unhappy 
relations with Spain, "to our former grounds of 
complaint" against which country had "been added 
a very serious one." 3 

Had these grave conditions not engaged the in- 
stant attention of Congress, had public sentiment — 
even with part of its fury drawn from Burr to Great 
Britain — been heeded at the National Capital, 

1 Jefferson's Seventh Annual Message, first draft, Works: Ford, x, 
523-24. 

2 See notes of Gallatin and Rodney, Works: Ford, x, footnotes to 
503-10. 

3 Jefferson's Seventh Annual Message, second draft, Works: Ford, 
X, 517. Blennerhassett, and probably Burr, would not have grieved 
had Marshall been impeached. It would be "penance for that timidity 
of conduct, which was probably as instrumental in keeping him from 
imbruing his hands in our blood as it was operative in inducing him 
to continue my vexations [the commitment of the conspirators to be 
tried in Ohio], to pacify the menaces and clamorous yells of the Cer- 
berus of Democracy with a sop which he would moisten, at least, with 
the tears of my family." (Blennerhassett Papers: Safford, 435.) 



532 JOHN MARSHALL 

there can be little doubt that John Marshall would 
have been impeached by the House that was now 
all but unanimously Republican, and would have 
been convicted by the overwhelmingly Jeffersonian 
Senate. 

Well for Marshall's peace of mind that he had 
secluded himself in the solitudes of the Blue Ridge, 
for never was an American judge subjected to abuse 
so unsparing. The Jeffersonian press, particularly 
the Aurora and the Enquirer, the two leading Re- 
publican papers, went to the limits of invective. 
"Let the judge be impeached," said the Enquirer; 
the Wickham dinner was recalled — why had Mar- 
shall attended it? His speech on the Jonathan 
Robins case l — " the price of his seat on the bench " 
— was "a lasting monument of his capacity to de- 
fend error." 

Marshall's "wavering and irresolute spirit" 
manifested throughout the trial had disgusted 
everybody. His attempt to make his rulings 
"palatable to all parties" had "so often wrapt them 
in obscurity" that it was hard "to understand on 
which side the court had decided." His conduct had 
been inspired by "power illicitly obtained." And 
think of his encouragement to Burr's counsel to 
indulge in "unbounded . . slander and vilification" 
of the President! Calender's libel on Adams was 
insipid compared with Martin's vulgar billingsgate 
toward Jefferson! But that "awful tribunal" — the 
people — would try Marshall; before it "evidence 

1 See vol. II, 464-71, of this work. 



WHAT IS TREASON? 533 

will neither be perverted nor suppressed. . . The 
character of the Chief Justice awaits the issue." l 

Another attack soon followed. Marshall's dis- 
graceful conduct "has proved that the Judges are 
too independent of the people." Let them be made 
removable by the President on the address of Con- 
gress. The Chase trial had shown that impeachment 
could not be relied on to cleanse the bench of a judge 
no matter how "noxious," "ridiculous," "contempt- 
ible," or "immoral" he might be. But "shall an 
imposter be suffered to preside on the bench of jus- 
tice? . . Are we to be eternally pestered with that 
most ridiculous and dangerous cant; that the people 
. . are incompetent to their own government: and 
that masters must be set over them and that bar- 
riers are to be raised up to protect those masters 
from the vengeance of the people?" 2 

Next came a series of "Letters to John Mar- 
shall," which appeared simultaneously in the Aurora 
and the Enquirer. They were written by William 
Thompson under the nom de guerre of "Lucius"; 
he undoubtedly was also the author of the earlier 
attacks on the Chief Justice in the Enquirer. They 
were widely copied in the Republican press of the 
country, and were a veracious expression of public 
sentiment. 

"Your country, sir, owes you a debt of gratitude 
for former favors," which cannot be paid because 

1 "Portrait of the Chief Justice," in the Richmond Enquirer, 
Nov. 6, 1807. This article fills more than two closely printed col- 
umns. It discusses, and not without ability, the supposed errors in 
Marshall's opinions. 

2 Enquirer, Nov. 24, 1807. 



534 JOHN MARSHALL 

"the whole stock of national indignation and con- 
tempt would be exhausted, before the half of your 
just claim could be discharged." Marshall had 
earned "infamy and detestation" by his efforts to 
erect "tyranny upon the tomb of freedom." His 
skill "in conducting the manouvres of a political 
party," his " crafty cunning " as a diplomat, had been 
perpetuated by the "genius" of John Thompson, 
whose "literary glory . . will shine when even the 
splendour of your talents and your crimes shall have 
faded forever. When your volumes of apology for 
British insolence and cruelty x shall be buried in 
oblivion, the 'Letters of Curtius ' 2 will . . 'damn you 
to everlasting fame.' " Marshall's entire life, accord- 
ing to Lucius, had been that of a sly, bigoted politi- 
cian who had always worked against the people. 
He might have become "one of the boasted patri- 
ots of Virginia," but now he was "a disgrace to the 
bench of justice." He was a Jeffreys, a Bromley, a 
Mansfield. 3 

Quickly appeared a second letter to Marshall, 
accusing him of having "prostrated the dignity of 
the chief justice of the United States. " Lucius goes 
into a lengthy analysis of Marshall's numerous opin- 
ions in the Burr trials. A just review of the proceed- 
ings, he said, demonstrates that the Chief Justice 
had "exhibited a culpable partiality towards the 
accused, and a shameless solicitude . . to implicate 
the government . . as negligent of their duty" — 

1 Marshall's Life of Washington. 

2 See vol. n, 395-96, of this work. 

3 "Letters to John Marshall, Chief Justice of the United States," 
in the Aurora, reprinted in the Enquirer, Dec. 1, 1807. 



WHAT IS TREASON? 535 

something that " a less malicious magistrate" never 
would have dared to display. 1 A third letter con- 
tinued the castigation of Marshall and the defense 
of Jefferson. Closing an extended argument on 
this joint theme, Lucius addressed Marshall thus: 
"Common sense, and violated justice, cry aloud 
against such conduct; and demand against you the 
enforcement of these laws, which you refuse to ad- 
minister." 2 

All these arraignments of Marshall had, as we 
have seen, 3 been submitted to Jefferson. They rose 
in the final letter to a climax of vituperation : " Could 
I be instrumental in removing you from the eleva- 
tion which you have dishonored by . . your crimes, I 
would still trace you . . for screening a criminal and 
degrading a judge" by the "juggle of a judicial 
farce." Marshall and Burr were alike "morally 
guilty," alike "traitors in heart and in fact. . . Such 
a criminal and such a judge, few countries ever pro- 
duced. . . You are forever doomed to blot the fair 
page of American history, to be held up, as examples 
of infamy and disgrace, of perverted talents and un- 
punished criminality, of foes to liberty and traitors 
to your country." 4 

Incited by similar attacks in the Republican press 
of Baltimore, 6 the more ardent patriots of that 
place resolved publicly to execute Marshall in ef- 
figy, along with Burr, Blennerhassett, and Martin. 
On the morning of November 3, satirical handbills, 

1 Enquirer, Dec. 4, 1807. 

1 lb. Dec. 8, 1807. 3 See supra, 525-26. 

4 Enquirer, Dec. 12, 1807. 

6 Blennerhassett Papers: Safford, 475. 



536 JOHN MARSHALL 

announcing this act of public justice, were scattered 
over the city: 

"AWFUL!!! 

"The public are hereby notified that four "choice 
spirits' are this afternoon, at 3 o'clock, to be mar- 
shaled for execution by the hangman, on Gallows 
Hill, in consequence of the sentence pronounced 
against them by the unanimous voice of every hon- 
est man in the community. 

"The respective crimes for which they suffer are 
thus stated in the record: 

"First, Chief Justice M. for a repetition of his 
X.Y.Z. tricks, which are said to be much aggravated 
by his felonins [sic] capers in open Court, on the plea 
of irrelevancy; 

"Secondly, His Quid Majesty [Burr], charged with 
the trifling fault of wishing to divide the Union, and 
farm Baron Bastrop's grant; 

"Thirdly, B[lennerhassett], the chemist, convicted 
of conspiracy to destroy the tone of the public Fiddle; 

"Fourthly, and lastly, but not least, Lawyer 
Brandy-Bottle, for a false, scandalous, malicious 
Prophecy, that, before six months, "Aaron Burr 
would divide the Union.' 

"N.B. The execution of accomplices is postponed 
to a future day." l 

Martin demanded of the Mayor the protection of 
the law. In response, police were sent to his house 
and to the Evans Hotel where Blennerhassett was 

1 Blennerhassett Papers: Safford, 477. 



WHAT IS TREASON? 537 

staying. Burr and the faithful Swartwout, who had 
accompanied his friend and leader, were escorted 
by a guard to the stage office, where they quickly 
left for Philadelphia. 1 Martin's law students and 

1 Gathering a few dollars from personal friends, Burr sailed for Eng- 
land, hoping to get from the British Government support for his plans 
to revolutionize Mexico. At first all went well. Men like Jeremy 
Bentham and Sir Walter Scott became his friends and admirers. But 
the hand of Jefferson followed him; and on representations of the 
American Minister, the British Government ordered him to leave 
the United Kingdom immediately. 

Next he sought the ear of Napoleon; but again he was flouted and 
insulted by the American diplomatic and consular representatives — 
he was, they said, "a fugitive from justice." His last sou gone, ragged 
and often hungry, he managed at last, by the aid of one John Reeves, 
to secure passage for Boston, where he landed May 4, 1812. Then he 
journeyed to New York, where he arrived June 30 in abject poverty 
and utterly ruined. But still his spirit did not give way. 

Soon, however, fate struck him the only blow that, until now, ever 
had brought this iron man to his knees. His passionately beloved 
little grandson, Aaron Burr Alston, died in June. In December, an- 
other and heavier stroke fell. His daughter sailed from Charleston. 
South Carolina, to join and comfort her father and be comforted by 
him. Her ship was lost in a storm, and Theodosia the beautiful, the 
accomplished, the adored, was drowned. Then, at last, the heart of 
Aaron Burr was broken. 

Of the many ridiculous stories told of Burr and his daughter, one 
was that her ship was captured by pirates and she, ordered to walk the 
plank, did so with her child in her arms "without hesitation or visible 
tremor." This absurdity was given credit and currency by Harriet 
Martineau. (See Martineau : Western Travels, n, 291-92.) Theodosia's 
child had died six months before she sailed from Charleston to go to 
her father, and she embarked in a pilot boat, about which no piratt 
would have troubled himself. 

The remainder of Burr's long life was given to the practice of his 
profession. His industry, legal learning, and ability, once more secured 
for him a good business. In 1824, Marshall ruled on an application 
to restore an attorney named Burr to the bar of the Circuit Court of 
the District of Columbia from which he had been suspended for un- 
professional conduct. (Ex parte Burr, 9 Wheaton, 529-31.) It has 
often been erroneously supposed that this applicant was Aaron Burr: 
he was, however, one Levi Burr, a local practitioner, and not related 
to Aaron Burr. 

It is characteristic of Burr that he remembered the great lawyer 



538 JOHN MARSHALL 

other friends armed themselves to resist violence 
to him. 

A policeman named Goldsmith notified Blenner- 

who voluntarily had hastened to defend him at Richmond, and Luther 
Martin — aged, infirm, and almost deranged — was taken to the 
home of Aaron Burr and tenderly cared for until he died. Burr's 
marriage, at the age of seventy-eight, to Madame Jumel was, on his 
part, inexplicable; it was the only regrettable but not unworthy inci- 
dent of the latter years of his life. (See Shelton: Jumel Mansion, 
170-74.) 

Burr's New York friends were loyal to him to his very last day. 
His political genius never grew dim. He early suggested and helped to 
bring about the nomination of Andrew Jackson for the Presidency. 
Thus did he pay the debt of gratitude for the loyalty with which the 
rugged Tennesseean had championed his cause against public opin- 
ion and Administration alike. 

During the summer of 1836 his last illness came upon him. When 
bis physician said that he could live but a few hours longer, a friend 
at his bedside asked the supposedly expiring man "whether in the ex- 
pedition to the Southwest he had designed a separation of the Union." 
Believing himself to be dying, Burr replied: "No! I would as soon have 
thought of taking possession of the moon and informing my friends 
that I intended to divide it among them." To a man, his most in- 
timate friends believed this statement to be true. 

Finally, on September 14, 1836, Aaron Burr died and was buried 
near his father at Princeton, New Jersey, where the parent had pre- 
sided over, and the son had attended, that Alma Mater of so many 
patriots, soldiers, and statesmen. 

For two years his burial place was unmarked. Then, at night-time, 
unknown friends erected over his grave a plain marble shaft, bearing 
this inscription: 

AARON BURR 

Born Feb. 6, 1756 

Died Sept. 14, 1836 

Colonel in the Army of the Revolution 

Vice-President of the United States from 1801 to 1805 

{Gulf States Historical Magazine, n, 379.) 

Parton's Life of Burr is still the best story of this strange life. But 
Parton must be read with great care, for he sometimes makes state- 
ments which are difficult of verification. 

A brief, engaging, and trustworthy account of the Burr episode is 
Aaron Burr, by Isaac Jenkinson. Until the appearance of Professor 
McCaleb's book, The Aaron Burr Cons-piracy, Mr. Jenkinson's littl« 



WHAT IS TREASON? 539 

hassett that a great mob was gathering, "had every- 
thing prepared for tarring and feathering and would, 
. . if disappointed or opposed, tear Martin [and 
Blennerhassett] to pieces." The manager of the 
hotel begged Blennerhassett to hide in the garret 
of the hostelry. This the forlorn Irishman did, 
and beheld from a window in the attic what passed 
below. 

Shouting and huzzaing men poured by, headed 
by fifers and drummers playing the "Rogue's 
march." Midway in the riotous throng were drawn 
two carts containing effigies of Chief Justice Marshall 
and the other popularly condemned men "habited 
for execution. . . Two troops of cavalry patrolled 
the streets, not to disperse the mob, but to follow 
and behold their conduct." At Martin's house the 
crowd stopped for a moment, hurling threats and 
insults, jeering at and defying the armed defenders 
within and "the cavalry without." 

Making "as much noise as if they were about to 
destroy the city," these devotees of justice and lib- 
erty proceeded to the place of public execution. 
There, amid roars of approval, the effigy of John 
Marshall, Chief Justice of the United States, was 
hanged by the neck until the executioner pronounced 
the stuffed figure to be dead. About him dangled 
from the gibbet the forms of the " traitors " — Aaron 
Burr and Harman Blennerhassett — and also that 
of Luther Martin, who had dared to defend them 

volume was the best on that subject. Professor McCaleb's thorough 
and scholarly study is, however, the only exhaustive and reliable 
narrative of that ambitious plan and the disastrous outcome of the 
attempted execution of it. 



540 JOHN MARSHALL 

and had thus incurred the malediction of Thomas 
Jefferson and " the people." * 

In the Senate Giles reported a bill to punish as 
traitors persons who permitted or aided in the per- 
petration of certain acts, "although not personally 
present when any such act was done"; and he sup- 
ported it in an argument of notable ability. He 
powerfully attacked Marshall, analyzed his opinions 
in the Burr case, contrasted them with those of other 
National judges, and pointed out the resulting con- 
fusion in the interpretation of the law. All this was 
spoken, however, with careful regard to the rules of 
parliamentary discussion. 2 

Legislation was necessary, said Giles; as matters 
stood, the decisions of judges on treason were like 
Congress "enacting our speeches, interspersed with 
our laws." With what result? No two judges have 
yet delivered the same opinion upon some of the 
most essential features of treason. Take for example 
the British doctrine that, in treason, accessories are 
principals. Were they in America? "Judge Chase 
and others say they are. Judge Marshall says he 
does not know whether they are or not, but his 
reasoning would go to show that they are not." 3 

Solely to gratify vox populi, the Senate next in- 
dulged in a doubtful performance. An attempt was 
made to expel Senator John Smith of Ohio. With 

1 Blennerhassett Papers: Safford, 480-82; also see Baltimore Ameri- 
can, Nov. 4, 5, 6, 1807. 

2 Annals, 10th Cong. 1st Sess. 108-27. 

3 The bill passed the Senate, but foreign affairs, and exciting leg* 
islation resulting from these, forced it from the mind of the House. 
(See vol. iv, chap, i, of this work.) 



WHAT IS TREASON? 541 

only a partial examination, and without allowing 
him to call a single witness in his own behalf before- 
hand, a special Senate Committee 1 presented a re- 
port concluding with a resolution to expel Smith 
because of "his participation in the conspiracy of 
Aaron Burr against the peace, union and liberties 
of the people of the United States." 2 This surprising 
document was the work of John Quincy Adams, 3 
who apparently adopted the ideas and almost the 
language of Lucius. 

Burr's conspiracy, wrote Adams, was so evil and 
was "established by such a mass of concurring and 
mutually corroborative testimony" that the "honor" 
of the Senate and "the deepest interests of this 

1 John Quincy Adams of Massachusetts, Samuel Maclay of Penn- 
sylvania, Jesse Franklin of North Carolina, Samuel Smith of Mary- 
land, John Pope of Kentucky, Buckner Thruston of Kentucky, and 
Joseph Anderson of Tennessee. (Annals, 10th Cong. 1st Sess. 42.) 

2 Smith had been indicted for treason and misdemeanor, but Hay 
had entered a nolle prosequi on the bills of indictment after the failure 
of the Burr prosecution. (Memoirs, J. Q. A.: Adams, i, 481.) 

3 Adams had been indulging in political maneuvers that indicated a 
courtship of the Administration and a purpose to join the Republican 
Party. His course had angered and disgusted most of his former Fed- 
eralist friends and supporters, who felt that he had deserted his de- 
clining party in order to advance his political fortunes. If this were 
true, his performance in writing the Committee report on the resolu- 
tion to expel Smith was well calculated to endear him to Jefferson. 
Adams expressed his own views thus: "On most of the great national 
questions now under discussion, my sense of duty leads me to support 
the administration, and I find myself of course in opposition to the 
federalists in general. . . My political prospects are declining." 
(Memoirs, J. Q. A.: Adams, i, 497-98.) 

The Federalist Legislature of Massachusetts grossly insulted Adams 
by electing his successor before Adams's term in the Senate had 
expired. Adams resigned, and in March, 1809, President Madison 
appointed him Minister to Russia, and later Minister to Great 
Britain. President Monroe made the former Federalist his Secretary 
of State. No Republican was more highly honored by these two 
Republican Presidents than was John Quincy Adams. 



542 JOHN MARSHALL 

nation" required that nobody connected with it 
should be a member of Congress. After an unctuous 
recitation of accepted generalities and a review of 
the expulsion of Senator Blount, together with an 
excellent statement of the law of parliamentary 
bodies in such cases, Adams got down to the business 
of destroying John Marshall. 1 

Marshall had "withheld from the jury . . a great 
part of the testimony which was essential to [Burr's] 
conviction. . . In consequence of this suppression of 
evidence" the trial jury had not been allowed to find 
a verdict of guilty against the traitor. Marshall's 
"decisions, forming the basis of the issue upon the 
trials of Burr . . were the sole inducements upon 
which the counsel for the United States abandoned 
the prosecution against him " (Smith) . An American 
grand jury had charged Senator Smith with being 
"an accomplice" of these diabolical plans, and the 
safety which Marshall's decisions in the Burr trial 
had thrown around Smith and other associates of 
the traitor "cannot, in the slightest degree, remove 
the imputation" which the indictment of Smith had 
brought to his door. 

1 Adams did not, of course, mention Marshall by name. His casti- 
gatio'a of the Chief Justice, however, was the more severe because of 
the unmistakable designation of him. (See Writings, J. Q. A.: Ford, 
in, 173-84; also Annals, 10th Cong. 1st Sess. 56-63.) 

It must be remembered, too, that this attack upon Marshall comes 
from the son of the man who, on January 20, 1801, appointed Marshall 
Chief Justice. (See vol. II, 552-53, of this work.) But John Quincy 
Adams soon came to be one of the stanchest supporters and most 
ardent admirers that Marshall ever had. It was peculiarly charac- 
teristic of Marshall that he did not resent the attack of Adams and, 
for the only time in his judicial career, actually interested himself 
in politics in behalf of Adams. (See vol. iv, chap. rx, of this work.) 



WHAT IS TREASON? 543 

"If," wrote Adams, "the daylight of evidence 
combining one vast complicated intention, with 
overt acts innumerable, be not excluded from the 
mind by the curtain of artificial rules, the simplest 
understanding cannot but see what the subtlest 
understanding cannot disguise, crimes before which 
ordinary treason whitens into virtue" and beyond 
"the ingenuity of a demon." 

Adams continued: "Whether the transactions 
proved against Aaron Burr did or did not amount, 
in technical language, to an overt act of levying 
war, your committee have not a scruple of doubt 
. . that, but for the vigilance and energy of the 
government, and of faithful citizens under its di- 
rections . . in crushing his designs, they would . . 
have terminated not only in war, but in a war of 
the most horrible description, . . at once foreign 
and domestic." 

To such lengths can popular demand, however 
unjust, drive even cold, unemotional, and upright 
men who are politically ambitious. Adams's Fed- 
eralist confreres reacted quickly; 1 and the New 

1 Adams's colleague Senator Pickering was, of course, disgusted 
(see his letter to King, Jan. 2, 1808, King, v, 44), and in a pamphlet 
entitled "A Review of the Correspondence Between the Hon. John 
Adams and the late William Cunningham, Esq." which he published 
in 1824, Pickering wrote that the resolution "outraged . . every dis- 
tinguished lawyer in America" (see p. 41 of pamphlet). King thought 
Adams "indiscreet" (see his letter to Pickering, Jan. 7, 1808, King, v, 
50). Plumer declared that the report "had given mortal offence" in 
New Hampshire (see Mass. Historical Society Proceedings, xlv, 357). 
John Lowell asserted that "justice . . was to be dragged from her seat 
. . and the eager minister of presidential vengeance seemed to sigh after 
the mild mercies of the star chamber, and the rapid movements of the 
revolutionary tribunal" (see his "Remarks" as quoted in Writings, 
J. Q. A.: Ford, m, footnote to 184). 



544 JOHN MARSHALL 

York Evening Post sharply criticized him. 1 When 
the report came up in the Senate, James A. Bayard 
of Delaware, and James Hillhouse of Connecticut, 
attacked it and its author with " unusual virulence." 
Bayard was especially severe. 2 Thus assailed, Adams 
was cast into black depression: "It is indeed a fiery 
ordeal I have to go through. God speed me through 
it!" he wrote in his diary that night. 3 

William Branch Giles cast the deciding vote which 
defeated Adams's resolution — the Senate refusing 
to expel Smith by a vote of 19 yeas to 10 nays, 4 just 
one short of the necessary two thirds. The Virginia 
Republican Senator attacked the resolution with 
all his fiery eloquence, and compelled the admiration 
even of Adams himself. 5 "I shall vote against the 
resolution," Giles concluded, "solely from the con- 
viction of the innocence of the accused." 6 

Herefrom one may judge the temper of the times 
and the perilous waters through which John Marshall 
had been compelled to pilot the craft of justice. If 
that "most deliberative legislative body" in our 
Government, and the one least affected by popular 
storms, was so worked upon, one can perceive the 

1 Jan. 28, 1808, Memoirs, J. Q. A.: Adams, i, 508; see also Writings, 
J. Q. A.: Ford, in, footnote to 184. 

2 "He poured himself forth in his two speeches to-day. . . It was 
all a phillipic upon me." (Jan. 7, 1808, Memoirs, J. Q. A.: Adams, 
i, 501.) 

3 lb. 4 Annals, 10th Cong. 1st Sess. 324. 

6 "Mr. Giles, in one of the most animated and eloquent speeches I 
ever heard him make, declared himself . . against the resolution for 
expulsion. He argued the case of Mr. Smith with all his eloquence, 
and returned to the charge with increasing warmth until the last 
moment." (April 9, 1808, Memoirs, J. Q. A.: Adams, i, 528.) 

6 Annals, 10th Cong. 1st Sess. 321-24. 



WHAT IS TREASON? 545 

conditions that surrounded the Chief Justice in 
overcrowded Richmond during the trial of Aaron 
Burr, and the real impending danger for Marshall, 
after the acquittal of the man whom Jefferson and the 
majority had branded with the most hideous infamy. 

Fortunate, indeed, for the Chief Justice of the 
United States, and for the stability of American 
institutions, that the machinery of impeachment 
was, during these fateful months, locked because 
the President, Congress, and the Nation were forced 
to give their attention to the grave foreign situation 
which could no longer be ignored. 

Going about his duties in Washington, or, at 
home, plodding out to the farm near Richmond, 
joking or gossiping with friends, and caring for his 
afflicted wife, Marshall heard the thunders of pop- 
ular denunciation gradually swallowed up in the 
louder and ever-increasing reverberations that her- 
alded approaching war with Great Britain. Before 
the clash of arms arrived, however, his level common 
sense and intelligent courage were again called upon 
to deal with another of those perplexing conditions 
which produced, one by one, opinions from the Su- 
preme Bench that have become a part of the living, 
growing, yet stable and enduring Constitution of 
the American Nation. 



CHAPTER X 

FRAUD AND CONTRACT 

If I were to characterize the United States, it should be by the appellation 
of the land of speculation. (William Priest.) 

By the God of Heaven, if we go on in this way, our nation will sink into dis- 
grace and slavery. (John Tyler.) 

Millions of acres are easily digested by such stomachs. They buy and sell 
corruption in the gross. (John Randolph.) 

When a law is in its nature a contract, when absolute rights have vested 
under that contract, a repeal of the law cannot divest those rights. The people 
can act only by their agents and, within the powers conferred upon them, 
their acts must be considered as the acts of the people. (Marshall.) 

The Honorable William Longs treet was an active 
and influential member of the Georgia Legislature 
during the winter of 1794-95. He was also a prac- 
tical man. An important bill was then before that 
body, and Mr. Longstreet employed effective meth- 
ods to forward its passage. The proposed legislation 
was to authorize the sale to four speculating land 
companies 1 of most of that territory which comprises 
the present States of Alabama and Mississippi. 

"Why are you not in favor of selling the western 
lands?" frequently asked Representative Longstreet 
of his fellow member, Clem Lanier. "Because I do 
not think it right to sell to companies of speculators," 
was the answer. "Better vote for the bill," observed 
his seat mate, Representative Henry Gindrat, one 
day as they sat chatting before the Speaker of the 
House took the chair. "It will be worth your while. 
Senator Thomas Wylly says that he can have eight 
or ten likely negroes for his part." 

1 See infra, 550. 



FRAUD AND CONTRACT 547 

That afternoon Senator Wylly came to Lanier 
and began to talk of the land bill. A Mr. Dennison 
sauntered up. Wylly left, and the newcomer re- 
marked that, of course, he advised no legislator how 
to vote, but he could not help noticing that all who 
favored the sale of the lands "were handsomely 
provided for." If Lanier should support the bill, he 
would be taken care of like the rest. He was buy- 
ing, Dennison said, from members who wished to 
sell lands allotted to them for agreeing to support 
the measure. 

Once more came Longstreet, who "presented a 
certificate entitling the bearer to two shares of 
twenty-five thousand acres each," as security that 
Lanier would be rewarded if he voted for the sale 
bill. The obdurate Representative, who wished to 
probe the depths of the plot, objected, and Long- 
street assured him that he would immediately pro- 
cure "another certificate . . for the same number 
of acres." But Lanier finally declined the bribe of 
seventy-five thousand acres of land. 1 

Representative Gindrat had offered to sell his 
shares for one thousand dollars, the price generally 
given; but, securing "a better market," declined 
that sum. 2 Representative Lachlan MTntosh re- 
ceived six shares in one of the land companies, which 
he sold at a premium of two hundred and fifty dol- 
lars each. 3 

After the bill had passed, Senator Robert Thomas, 

1 Affidavit of Clem Lanier, Am. State Papers, Public Lands, I, 145. 

2 Affidavit of Peter L. Van Allen, ib. 

3 Ib. It would appear that one hundred and fifty thousand acres 
were allotted to the thrifty Scotch legislator. He sold them for $7500. 



548 JOHN MARSHALL 

who had no means of acquiring ready cash, 1 brought 
two thousand dollars to the house where he boarded 
and asked Philip Clayton, the owner, to keep it for 
him. Clayton was curious — did Senator Thomas 
get the money for his share of the lands? he inquired. 
"It is nothing to you; take care of it," answered the 
suddenly affluent legislator, smiling. 2 

Representative Longstreet offered Representative 
John Shepperd one hundred thousand acres, but 
Shepperd was not interested; then Philip Clayton, 
the tavern-keeper, offered him seventy pounds to go 
home for the session. 3 

A saturnalia of corruption was in progress in the 
little village of Augusta, where the Legislature of 
Georgia was in session. 4 The leading men of that 
and neighboring States were on the ground urging 
the enactment of the law in which all were interested. 
Wade Hampton of South Carolina was on hand. 
State and National judges were present. James 
Wilson of Pennsylvania, Associate Justice of the 
Supreme Court of the United States, was there 
with twenty-five thousand dollars in bank bills. 5 

1 Affidavit of John Thomas, Jr., Am. State Papers, Public Lands, 
I, 148. 

2 Affidavit of Philip Clayton, ib. 146. 

3 Affidavit of John Shepperd, ib. 

4 About sixty affidavits were made to show the venality of members 
of the Legislature. Of these, twenty-one are printed in ib. 144-49. 

5 Harris: Georgia from the Invasion of De Soto to Recent Times, 
127-28; White: Statistics of the State of Georgia, 50; Chappell: Miscel- 
lanies of Georgia, 93-95. 

These writers leave the unjust inference that Wilson was one of 
those who were corrupting the Legislature. This is almost certainly 
untrue. For a quarter of a century Wilson had been a heavy speculator 
in Indian lands, and it appears reasonable that he took this money 
to Augusta for the purpose of investment. When the deal was con- 



FRAUD AND CONTRACT 549 

William Smith, Judge of the Superior Court of 
Georgia, added his influence, receiving for his serv- 
ice as lobbyist thirteen thousand dollars. Nathan- 
iel Pendleton, Judge of the United States Court for 
that district, urged the legislation and signed and 
issued the certificates for shares that were given 
to the members for their votes. 1 Directing all 
was General James Gunn, United States Senator 
from Georgia: his first term in the National Senate 
about to expire, he was now reelected by this very 
Legislature. 2 

A majority of Georgia's lawmaking body thus 
became financially interested in the project, and 
the bill passed both houses. But Governor George 
Mathews vetoed the measure, because he thought 
the time not propitious for selling the lands, the price 
too low, the reservations for Georgians too small, 
and the principle of monopoly wrong. 3 Another bill 
was prepared to meet some of the Governor's objec- 
tions. This was introduced as a supplement to a law 
just enacted to pay the State troops. 4 Again every 
possible influence was brought upon the Legislature 
to pass this bill with utmost dispatch. 5 Some mem- 

summated, the Justice held shares to the amount of at least three 
quarters of a million of acres. (Chappell, 94.) 

1 lb. 95. 

2 Gunn's reelection was the first step in the conspiracy. Not until 
that was accomplished was a word said about the sale of the lands. 
Immediately after the Legislature had chosen Gunn for a second term 
in the National Senate, however, the bill was introduced and the 
campaign of intimidation and bribery launched, to force its passage. 
(lb. 82-83.) 

3 See Mathews's reasons, as quoted in the Rescinding Act of 1796, 
Am. State Papers, Public Lands, I, 156. 

4 Chappell, 86. 

5 The claims of Spain to the territory had been a serious cloud on 



550 JOHN MARSHALL 

bers, who would not support it, were induced to leave 
the tiny Georgia Capital; others, who were recalci- 
trant, were browbeaten and bullied. 

Senator Gunn, the field marshal of this legislative 
campaign, strode about the village arrayed in broad- 
cloth, top boots, and beaver hat, commending those 
who favored the bill, abusing those who opposed it. 
In his hand he carried a loaded whip, and with this 
the burly Senator actually menaced members who 
objected to the scheme. 1 In a little more than one 
week the bill was rushed through both houses. This 
time it received the reluctant approval of the Gover- 
nor, and on January 7, 1795, became a law. 

In such fashion was enacted the legislation which 
disposed of more than thirty-five million acres of 
fertile, well-watered, heavily wooded land at less 
than one and one half cents an acre. 2 The purchasers 
were four companies known as The Georgia Com- 
pany, The Georgia Mississippi Company, The Ten- 
nessee Company, and The Upper Mississippi Com- 
pany. The total purchase price was five hundred 
thousand dollars in specie or approved currency., 
one fifth to be deposited with the State Treasurer 
before the passage of the act, and the remainder to 

the title. In October, 1795, the treaty with the Spanish Government, 
which removed this defect, was published. Senator James Gunn had 
knowledge that the treaty would be negotiated long before it was 
made known to the world or even concluded. This fact was one of 
the reasons for the mad haste with which the corrupt sale act was 
rushed through the Georgia Legislature. (See Chappell, 72-73.) 

1 Gunn was a perfect example of the corrupt, yet able, bold, and 
demagogical politician. He was a master of the arts alike of cajolery 
and intimidation. For a vivid account of this man see Chappell, 
99-105. 

2 Haskins: Yazoo Land Companies, 24. 



FRAUD AND CONTRACT 551 

be paid on or before November 1, 1795. The Gover- 
nor was directed to execute a deed in fee-simple to 
the men composing each company as tenants in com- 
mon; and the deferred payments were secured by 
mortgages to the Governor, to be immediately fore- 
closed upon default of payment, and the one fifth 
already deposited to be forfeited to the State. 

Two million acres were reserved for exclusive 
entry by citizens of Georgia, and the land companies 
were bound to form settlements within five years 
after the Indian titles had been extinguished. The 
lands were declared free of taxation until they should 
be so occupied that the settlers were represented in 
the Legislature. l Governor Mathews executed deeds 
in compliance with the law, and, the entire amount 
of the purchase money having been paid into the 
State Treasury before November 1, the mortgages 
were canceled and the transaction was closed in 
accordance with the provisions of the statute. So 
far as that legislation and the steps taken in pursu- 
ance of it could bring about such a result, the legal 
title to practically all of the domain stretching from 
the present western boundary of Georgia to the Mis- 
sissippi River, and from the narrow strip of Span- 
ish territory on the Gulf to the Tennessee line, was 
transferred to the men composing these four land 
companies. The greatest real estate deal in history 
was thus consummated. 

But even while this bill was before the Legisla- 
ture, popular opposition to it began. A young man of 
twenty-three was then teaching in a little school- 

1 Am. State Papers, Public lands, i, 151-52. 



552 JOHN MARSHALL 

house at Augusta, but he was destined to become 
United States Senator, Minister to France, Secre- 
tary of the Treasury, and candidate for President. 
Enraged at what he believed the despoiling of the 
people by a band of robbers using robbers' methods, 
young William H. Crawford hurried to his home in 
Columbia County, got up a petition to the Governor 
to reject the bill again, and hurried to the Capital 
where he presented it to the Chief Executive of the 
State. 1 But Governor Mathews, against whom no 
man, then or thereafter, charged corrupt motives, 
persisted in signing the measure. 

And it must be said that the bill was not without 
merit. Georgia was but thinly populated, not more 
than fifty thousand human beings inhabiting its 
immense extent of savanna and forest. Most of 
these people were very poor 2 and unable to pay any 
public charges whatever. The State Treasury was 
empty; the State troops, who had been employed in 
the endless Indian troubles, were unpaid and clam- 
oring for the money long due them ; the State cur- 
rency had so depreciated that it was almost without 
value. No commonwealth in the Union was in worse 
financial case. 3 

Moreover, the titles of the Indians, who occupied 
the country and who were its real owners, had not 
been extinguished. Under the Constitution, the Na- 
tional Government alone could deal with the tribes, 

1 Chappell, 87. 

2 "A small smoky cabin with a dirt floor was the home of most of 
them." (Smith: Story of Georgia and the Georgia People, 181.) For 
a good description of pioneer houses and manner of living, see Ram- 
sey: Annals of Tennessee to the End of the Eighteenth Century, 715-16 

3 Smith, 170-71. 



FRAUD AND CONTRACT 553 

and it had long been urging Georgia to cede her 
claims to the United States, as Virginia and Connec- 
ticut had done. Indeed, the State had once offered 
to make this cession, but on such terms that Con- 
gress had refused to accept it. The purchasers now 
took whatever title Georgia had, subject to these 
burdens, the State to be saved from all annoyance 
on account of them. 

The tribes were powerful and brave, and they had 
been prompt and bold in the defense of their lands. 
The Creeks alone could put nearly six thousand 
fighting men in the field, and the Choctaws had 
more than four thousand trained warriors. 1 The 
feeble and impoverished State had never been able 
to subdue them, or to enforce in the slightest degree 
the recognition of the State's title to the country 
they inhabited. Georgia's right to their lands "de- 
pended on her power to dispossess the Indians; but 
however good the title might be, the State would 
have been fortunate to make it a free gift to any 
authority strong enough to deal with the Creeks and 
Cherokees alone." 2 

The sale of the territory was not a new or novel 
project. Six years earlier the State had disposed of 
twenty-five million five hundred thousand acres of 
the same territory to four land companies on much 
poorer terms. 3 Jefferson, then Secretary of State, 
rendered a careful opinion on the right of Georgia to 

1 Morse's American Gazetteer, as quoted in Bishop : Georgia Specula- 
tion Unveiled, 3-4. 

2 Adams: U.S. I, 303. 

1 The South Carolina Yazoo Company, 10,000,000 acres for $06,964 ; 
The Virginia Yazoo Company, 11,400,000 acres for $93,741 ; The Ten- 
nessee Company, 4,000,000 acres for $46,875. (Haskins, 8.) 



554 JOHN MARSHALL 

make the grant. 1 These purchasers had tendered 
payment in South Carolina and Continental scrip 
that was practically worthless; the Treasurer of 
Georgia had properly refused to accept it; and there 
ended the transaction as far as the State was con- 
cerned. A suit was later brought against Georgia by 
the grantees 2 to compel the performance of the con- 
tract; but the Eleventh Amendment of the Consti- 
tution, which this litigation produced, thwarted that 
legal plan. So these speculators dropped the matter 
until the sale just described was made to the new 
companies six years later. 

The most active promoters of the first purchasing 
companies, in 1789, were mere adventurers, although 
at first Patrick Henry and other men of honor and 
repute were interested in the speculation. Henry, 
however, soon withdrew. 3 The consummation of 
their deal with Georgia required the payment of 
sound money and bona-fi.de settlement by actual 
tillers of the soil. Also, the adventurers got into 
trouble with the Indians, became gravely involved 
in Spanish intrigue, and collided with the National 
Government; 4 so the enterprise lost, for a time, all 
attractiveness for these speculators. 

The new land companies, on the other hand, were 
for the most part composed of men of excellent repu- 
tations. 5 At the head of the largest, The Georgia 

1 Works: Ford, vi, 55-57. 

2 Chishohn vs. Georgia, 2 Dallas, 419; and see vol. n, 83-84, of 
this work. 

3 Chappell, 92-93. i lb. 67-68; Haskins, 13-15. 

5 "No men stood higher in Georgia than the men who composed 
these several companies and the members of the Legislature who made 
the sale." (Smith, 173.) 



FRAUD AND CONTRACT 555 

Company, were United States Senator James Gunn 
and United States Attorney for the District of 
Georgia, Mathew McAlister; associated with them, 
in addition to Judges Stith and Pendleton, and Jus- 
tice Wilson, were Robert Goodloe Harper, Repre- 
sentative in Congress from Maryland, Robert Morris, 
the financier of the Revolution, and others of sub- 
stance and position. l Also, as has been stated, they 
paid for their lands in the money called for by the 
act — the best money then circulating in America. 
The first sales of Indian lands to which Georgia 
claimed title were known as the "Yazoo" specula- 
tion, and this designation stuck to the second trans- 
action. 

In the six years that had intervened between the 
sales to the irresponsible land-jobbers of 1789 and 
the solvent investors of 1795, an event of world im- 
portance had occurred which doubled and trebled 
the value of all cotton-bearing soil. Eli Whitney, a 
Connecticut school-teacher twenty-seven years of 
age, had gone to Georgia in 1792 to act as a private 
tutor. Finding the position taken, he studied law 
while the guest of the widow of General Nathanael 
Greene. This discerning woman, perceiving that 
the young man was gifted with inventive genius, 
set him to work on a device for separating cotton 
from the seed. The machine was built, and worked 
perfectly. The news of it traveled with astonishing 
rapidity throughout Georgia and the South. The 
model was stolen; and so simple was the construc- 
tion of it that everywhere in cotton-growing lands it 
1 See Haskins, 25, and sources there cited. 



55Q JOHN MARSHALL 

was freely reproduced by planters great and small. 
The vast sweep of territory stretching from Georgia 
to the Father of Waters, the best cotton land in the 
world, thus rose in value as if the wand of a financial 
deity had been waved over it. Settlers poured into 
Georgia by the thousand, and Indian atrocities were 
now as little feared as Indian rights were respected. 1 

The purchase of the unoccupied Georgia lands by 
the bona-fide, if piratical, land companies of 1795 
became, therefore, an adventure far more valuable 
in possibilities for the investors, and incomparably 
more attractive in the probability of political advan- 
tage to those who resisted it, than the innocuous and 
unopposed sale to the Yazoo swindlers of six years 
previous. 

So it fell out that the mechanical genius of Eli 
Whitney, in 1793, called into action, exactly eighteen 
years afterward, the judicial genius of John Marshall. 
His opinion in Fletcher vs. Peck was one of the first 
steps toward the settling of the law of public con- 
tract in the riotous young Republic — one of the 
earliest and strongest judicial assertions of the su- 
premacy of Nationalism over Localism. And never 
more than at that particular time did an established 
rule on these vital subjects so need to be announced 
by the highest judicial authority. 

Since before the Revolution, all men had fixed 
their eyes, hopes, and purposes upon land. Not the 

1 The effect of Whitney's invention is shown in striking fashion 
by the increase of cotton exports. In 1791 only 189,500 pounds were 
exported from the entire United States. Ten years later Georgia alone 
exported 3,444,420 pounds. (Jones and Dutcher: Memorial History 
of Augusta, Georgia, 165.) 



FRAUD AND CONTRACT 557 

humble and needy only, but the high-placed and 
opulent, had looked to the soil — the one as their 
chief source of livelihood, and the other as a means 
of profitable speculation. Indeed, dealing in land 
was the most notable economic fact in the early 
years of the American Nation. "Were I to char- 
acterize the United States" chronicles one of the 
most acute British travelers and observers of the 
time, "it should be by the appellation of the land oj 
speculation." l 

From the Nation's beginning, the States had lax 
notions as to the sacredness of public contracts, and 
often violated the obligations of them. 2 Private 
agreements stood on a somewhat firmer basis, but 
even these were looked upon with none too ardent 
favor. The most familiar forms of contract-breaking 
were the making legal tender of depreciated paper, 
and the substitution of property for money ; but other 
devices were also resorted to. So it was that the pro- 
vision, "no state shall pass any law impairing the 
obligation of contracts," was placed in the Constitu- 
tion. 3 The effect of this on the public mind, as re- 

1 Priest: Travels in tJie United States, 132; and see Haskins, 3. 
Otis speaks of the "land jobbing prospectors," and says that 

"money is the object here [Boston] with all ranks and degrees.'' 
(Otis to Harper, April 10, 1807, Morison: Otis, i, 283.) 

The national character "is degenerated into a system of stock- 
jobbing, extortion and usury. . . By the God of Heaven, if we go on 
in this way, our nation will sink into disgrace and slavery." (Tyler 
to Madison, Jan. 15, 1810, Tyler, I, 235.) 

2 See vol. I, 428, of this work. 

3 It was, however, among the last items proposed to the Conven- 
tion, which had been at work more than three months before the 
"contract clause" was suggested. Even then the proposal was only 
as to new States. The motion was made by Rufus King of New York 
on August 28. Gouverneur Morris objected. "This would be going 



558 JOHN MARSHALL 

ported by conservatives like Marshall, is stated in 
the Commercial Gazette of Boston, January 28, 1799: 
"State laws protected debtors" when they "were 
citizens . . [and] the creditors foreigners. The federal 
constitution, prohibiting the states to clear off debts 
without payment, by exacting justice, seemed . . to 
establish oppression." The debtors, therefore, "pro- 
nounced . . the equal reign of law and debt-compel- 
ling justice, the beginning of an insidious attack on 
liberty and the erection of aristocracy." 

too far," he said. George Mason of Virginia said the same thing. Mad- 
ison thought "a negative on the State laws could alone secure the 
effect." James Wilson of Pennsylvania warmly supported King's 
motion. John Rutledge of South Carolina moved, as a substitute for 
King's proposition, that States should not pass "bills of attainder nor 
retrospective laws." (Records, Fed. Conv.: Farrand, n, 440.) This car- 
ried, and nothing more appears as to the contract clause until it was 
included by the Committee on Style in its report of September 12. 
(Ib. 596-97.) Elbridge Gerry of Massachusetts strongly favored it 
and even wanted Congress "to be laid under the like prohibitions." 
(Ib. 619.) The Convention refused to insert the word "previous" 
before "obligation." (76. 636.) 

In this manner the provision that "no state shall pass any law im- 
pairing the obligation of contracts" was inserted in the Constitution. 
The framers of that instrument apparently had in mind, however, the 
danger of the violation of contracts through depreciated paper money 
rather than the invalidation of agreements by the direct action of 
State Legislatures. (See speech of William R. Davie in the North 
Carolina Convention, July 29, 1788, ib. in, 349-50; speech of James 
McHenry before the Maryland House of Delegates, Nov. 29, 1787, 
ib. 150; and speech of Luther Martin before same, same date, ib. 214; 
also see Madison to Ingersoll, Feb. 2, 1831, ib. 495.) 

Madison best stated the reason for the adoption of the contract 
clause: "A violations [sic] of Contracts had become familiar in the 
form of depreciated paper made a legal tender, of property substituted 
for money, of Instalment laws, and of the occlusions of the Courts 
of Justice; although evident that all such interferences affected the 
rights of other States, relatively Creditor, as well as Citizens Creditors 
within the State." (Ib. 548.) Roger Sherman and Oliver Ellsworth 
explained briefly that the clause "was thought necessary as a security 
to commerce." (Letter to the Governor of Connecticut, Sept. 26, 
1787, ib. 100.) 



FRAUD AND CONTRACT 559 

The "contract clause" of the Constitution was 
now to be formally challenged by a "sovereign" 
State for the first time since the establishment of 
the National Government. Georgia was to assert 
her "sovereignty" by the repudiation of her laws 
and the denial of contractual rights acquired under 
them. And this she was to do with every apparent 
consideration of morality and public justice to sup- 
port her. 

The tidings of the corruption attending the second 
"Yazoo" sale were carried over the State on the 
wings of fury. A transaction which six years before 
had met with general acquiescence, 1 now received 
deep-throated execration. The methods by which 
the sale was pushed through the Legislature mad- 
dened the people, and their wrath was increased by 
the knowledge that the invention of the Connecticut 
schoolmaster had tremendously enhanced the value 
of every acre of cotton-bearing soil. 

Men who lived near Augusta assembled and 
marched on the Capital determined to lynch their 
legislative betrayers. Only the pleadings of members 
who had voted against the bill saved the lives of 
their guilty associates. 2 Meetings were held in every 
hamlet. Shaggy backwoodsmen met in "old-field" 
log schoolhouses and denounced "the steal." The 
burning in effigy of Senator Gunn became a favorite 
manifestation of popular wrath. The public indig- 
nation was strengthened by the exercise of it. Those 
responsible for the enactment of the law found it 
perilous to be seen in any crowd. One member left 

1 Chappell, 67. 2 Harris, 130. 



560 JOHN MARSHALL 

the State. Another escaped hanging only by precip- 
itate flight. 1 Scores of resolutions were passed by 
town, rural, and backwoods assemblages demanding 
that the fraudulent statute be rescinded. Petitions, 
circulated from the "mansion" of the wealthy 
planter to the squalid cabin of the poorest white 
man, were signed by high and low alike. The grand 
juries of every county in Georgia, except two, for- 
mally presented as a grievance the passage of the 
land sale act of 1795. 

Among other things, the land sale act required 
the Senators and Representatives of Georgia in 
Congress to urge the National Government to speed 
the making of a treaty with the Indian tribes extin- 
guishing their title to the lands which the State had 
sold. Upon receiving a copy of the nefarious law, 
Senator James Jackson of Georgia laid it before 
the Senate, together with a resolution declaring that 
that body would "advise and consent" to the Presi- 
dent's concluding any arrangement that would di- 
vest the Indians of their claims. 2 

But although he had full knowledge of the meth- 
ods by which the act was passed, the records do 
not show that Jackson then gave the slightest ex- 
pression to that indignation which he so soon there- 
after poured forth. Nor is there any evidence that 
he said a word on the subject when, on March 2, 
1795, Georgia's title again came before the Senate. 3 

1 Harris, 131. 

2 Feb. 27, 1795, Annals, 3d Cong. 1st and 2d Sess. 838-39. 

3 lb. 844-45. The silence of Jackson at this time is all the more im- 
pressive because the report of the Attorney-General would surely be 
used by the land companies to encourage investors to buy. Both 



FRAUD AND CONTRACT 561 

Some time afterward, however, Senator Jackson 
hurried home and put himself at the head of the 
popular movement against the "Yazoo Frauds." 
In every corner of the State, from seaport to re- 
motest settlement, his fiery eloquence roused the 
animosity of the people to still greater frenzy. In two 
papers then published in Georgia, the Savannah 
Gazette and the Augusta Chronicle, the Senator, un- 
der the nom de guerre of " Sicillius," published a series 
of articles attacking with savage violence the sale 
law and all connected with the enactment of it. 1 

It came out that every member of the Legislature 
who had voted for the measure, except one, 2 had 
shares of stock in the purchasing companies. 3 Sto- 
ries of the extent of the territory thus bartered away 
kept pace with tales of the venality by which the 
fraud was effected. Bad as the plain facts were, 
they became simply monstrous when magnified by 
the imagination of the public. 

Nearly every man elected 4 to the new Legislature 
was pledged to vote for the undoing of the fraud in 
any manner that might seem the most effective. 
Senator Jackson had resigned from the National 
Senate in order to become a member of the Georgia 
House of Representatives; and to this office he 
was overwhelmingly elected. When the Legislature 

Jackson and Gunn were present when King offered his resolution. 
{Annals, 3d Cong. 1st and 2d Sess. 846.) Jackson declined to vote 
on the passage of a House bill "making provision for the purposes of 
treaty" with the Indians occupying the Yazoo lands. (lb. 849-50.) 
1 Smith, 174. 2 Robert Watkins. 

3 See Report of the Commissioners, Am. State Papers, Public 
Lands, i, 132-35. 

4 The "Yazoo men" carried two counties. 



56% JOHN MARSHALL 

convened in the winter of 1795-96, it forthwith went 
about the task of destroying the corrupt work of its 
predecessor. Jackson was the undisputed leader; 1 
his associates passed, almost unanimously, and 
Governor Irwin promptly approved, the measure 
which Jackson wrote. 2 Thus was produced that 
enactment by a "sovereign" State, the validity of 
which John Marshall was solemnly to deny from the 
Supreme Bench of the Nation. 

Jackson's bill was a sprightly and engaging docu- 
ment. The preamble was nearly three times as long 
as the act itself, and abounded in interminable sen- 
tences. It denounced the land sale act as a violation 
of both State and National Constitutions, as the 
creation of a monopoly, as the dismemberment of 
Georgia, as the betrayal of the rights of man. In this 
fashion the "whereases" ran on for some thousands 
of words. On second thought the Legislature con- 
cluded that the law was worse than unconstitutional 
— it was, the "whereases " declared, a "usurped act." 
That part of the preamble dealing with the mingled 
questions of fraud and State sovereignty deserves 
quotation in full: 

"And Whereas," ran this exposition of Constitu- 
tional law and of the nature of contracts, "divested 

1 Chappell, 126. 

2 The outgoing Governor, George Mathews, in his last message to 
the Legislature, stoutly defended his approval of the sale act. He at- 
tributed the attacks upon him to "base and malicious reports," in- 
spired by "the blackest and the most persevering malice aided by dis- 
appointed avarice." The storm against the law was, he said, due to 
"popular clamour." (Message of Governor Mathews, Jan. 28, 1796, 
Harper: Case of the Georgia Sales on the Mississippi Considered, 
92-93.) 



FRAUD AND CONTRACT 563 

of all fundamental and constitutional authority 
which the said usurped act might be declared by 
its advocates, and those who claim under it, to be 
founded on, fraud has been practised to obtain it 
and the grants under it; and it is a fundamental 
principle, both of law and equity, that there cannot 
be a wrong without a remedy, and the State and the 
citizens thereof have suffered a most grievous injury 
in the barter of their rights by the said usurped act 
and grants, and there is no court existing, if the dig- 
nity of the State would permit her entering one, for 
the trial of fraud and collusion of individuals, or to 
contest her sovereignty with them, whereby the 
remedy for so notorious an injury could be obtained; 
and it can no where better lie than with the represent- 
atives of the people chosen by them, after due pro- 
mulgation by the grand juries of most of the coun- 
ties of the State, of the means practised, and by the 
remonstrances of the people of the convention, held on 
the 10th day of May, in the year 1795, setting forth 
the atrocious peculation, corruption, and collusion, 
by which the usurped act and grants were obtained." * 
At last the now highly enlightened Legislature 
enacted "that the said usurped act . . be declared 
null and void," and that all claims directly or in- 
directly arising therefrom be "annulled." The 
lands sold under the Act of 1795 were pronounced 
to be "the sole property of the State, subject only 
to the right of treaty of the United States, to enable 
the State to purchase, under its pre-emption right, 
the Indian title to the same." 2 

1 Am. State Papers, Public Lands, i, 157. 2 lb. 158. 



564 JOHN MARSHALL 

Such was the law which John Marshall was to 
declare invalid in one of the most far-reaching opin- 
ions ever delivered from the Supreme Bench. 

The Legislature further enacted that the "usurped 
act" and all "records, documents, and deeds" con- 
nected with the Yazoo fraud, "shall be expunged 
from the face and indexes of the books of record of 
the State, and the enrolled law or usurped act shall 
then be publicly burnt, in order that no trace of so 
unconstitutional, vile, and fraudulent a transaction, 
other than the infamy attached to it by this law, 
shall remain in the public offices thereof." County 
officials were, under the severest of penalties for 
disobedience, directed to "obliterate" all records 
of deeds or other instruments connected with the 
anathematized grants, and courts were forbidden to 
receive any evidence of title of any kind whatever 
to lands from the grantees under the "usurped act." x 

The Governor was directed to issue warrants for 
repayment to those who, in good faith, had deposited 
their purchase money, with this reservation, how- 
ever: "Provided the same shall be now therein." 2 
After six months all moneys not applied for were to 
become the property of Georgia. To prevent frauds 
upon individuals who might otherwise purchase 
lands from the pirate companies, the Governor was 
directed to promulgate this brief and simple act 
"throughout the United States." 

1 Am. State Papers, Public Lands, i, 158. 

2 The punctilious Legislature failed to explain that one hundred 
thousand dollars of the purchase money had already been appropri. 
ated and expended by the State. This sum they did not propose to 
restore. 



FRAUD AND CONTRACT 565 

A committee, appointed to devise a method for 
destroying the records, immediately reported that 
this should be done by cutting out of the books the 
leaves containing them. As to the enrolled bill con- 
taining the "usurped act," an elaborate performance 
was directed to be held: "A fire shall be made in 
front of the State House door, and a line formed by 
the members of both branches around the same. 
The Secretary of State l . . shall then produce the 
enrolled bill and usurped act from among the ar- 
chives of the State and deliver the same to the Presi- 
dent of the Senate, who shall examine the same, and 
shall then deliver the same to the Speaker of the 
House of Representatives for like examination; and 
the Speaker shall then deliver them to the Clerk of 
the House of Representatives, who shall read aloud 
the title to the same, and shall then deliver them to 
Messenger of the House, who shall then pronounce 
— ' God save the State ! ! And long preserve her 
rights!! And may every attempt to injure 
them perish as these corrupt acts now do !!!!'" 2 

Every detail of this play was carried out with all 
theatrical effect. Indeed, so highly wrought were the 
imaginations of actors and onlookers that, at the 
last moment, a final dash of color was added. Some 
one gifted with dramatic genius suggested that the 
funeral pyre of such unholy legislation should not be 
lighted by earthly hands, but by fire from Heaven. 
A sun- glass was produced; Senator Jackson held it 

1 "Or his deputy." 

2 Report of the joint committee, as quoted in Stevens : History of 
Georgia from its First Discovery by Europeans to the Adoption of the 
Present Constitution in 1798, n, 491-92. 



566 JOHN MARSHALL 

above the fagots and the pile was kindled from " the 
burning rays of the lidless eye of justice." l 

While the State was still in convulsions of anger, 
a talented young Virginian of impressionable tem- 
perament went to Georgia upon a visit to a college 
friend, Joseph Bryan, and was so profoundly moved 
by accounts of the attempt to plunder the State, 
that a hatred of the corrupt plot and of all con- 
nected with it became an obsession that lasted as 
long as he lived. 2 Thus was planted in the soul of 
John Randolph that determination which later, 
when a member of Congress, caused him to attack 
the Administration of Thomas Jefferson. 3 

Swift as was the action of the people and legisla- 
ture of Georgia in attempting to recover the Yazoo 
lands, it was not so speedy as that of the speculators 
in disposing of them to purchasers in other States. 
Most of these investors bought in entire good faith 
and were "innocent purchasers." Some, however, 
must have been thoroughly familiar with the fraud. 4 

1 Stevens, 492-93. Stevens says that there is no positive proof of this 
incident; but all other writers declare that it occurred. See Knight: 
Georgia's Landmarks, Memorialsand Legends, l, 152-53; also Harris, 135. 

2 Adams: Randolph, 23; also Garland: Life of John Randolph of 
Roanoke, i, 64-68. 

3 See infra, 577-81; and supra, chap. iv. 

4 For instance, Wade Hampton immediately sold the entire hold- 
ings of The Upper Mississippi Company, millions of acres, to three 
South Carolina speculators, and it is quite impossible that they did not 
know of the corruption of the Georgia Legislature. Hampton acquired 
from his partners, John B. Scott and John C. Nightingale, all of their 
interests in the company's purchase. This was done on January 16 and 
17, immediately after Governor Mathews had signed the deed from 
the State. Seven weeks later, March 6, 1795, Hampton conveyed all 
of this land to Adam Tunno, James Miller, and James Warrington. 
(Am. Stale Papers, Public Lands, i, 233.) Hampton was a member of 
Congress from South Carolina. 



FRAUD AND CONTRACT 567 

The most numerous sales were made in the Middle 
States and in New England. The land companies 
issued a prospectus, 1 setting out their title, which 
appeared to be, and indeed really was, legally per- 
fect. Thousands of copies of this pamphlet were 
scattered among provident and moneyed people. 
Agents of the companies truthfully described the 
Yazoo country to be rich, the climate mild and 
healthful, and the land certain of large and rapid 
rise in value. 

Three of the companies 2 opened an office in Bos- 
ton, where the spirit of speculation was rampant. 
Then ensued an epidemic of investment. Throngs 
of purchasers gathered at the promoters' offices. 
Each day prices rose and the excitement increased. 
Buying and selling of land became the one absorbing 
business of those who had either money or credit. 
Some of the most prominent and responsible men in 
New England acquired large tracts. 3 The companies 
received payment partly in cash, but chiefly in 
notes which were speedily sold in the market for 
commercial paper. Sales were made in other North- 
ern cities, and many foreigners became purchasers. 
The average price received was fourteen cents an 



1 State of Facts, shewing the Right of Certain Companies to the Lands 
lately purchased by them from the State of Georgia. 

2 The Georgia Mississippi Company, The Tennessee Company, and 
The Georgia Company. (See Haskins, 29.) 

3 Eleven million acres were purchased at eleven cents an acre by a 
few of the leading citizens of Boston. This one sale netted the Yazoo 
speculators almost a million dollars, while the fact that such eminent 
men invested in the Yazoo lands was a strong inducement to ordinary 
people to invest also. (See Chappell, 109.) 

4 See Chappell, 110-11. 



568 JOHN MARSHALL 

Some New Englanders were suspicious. "The 
Georgia land speculation calls for vigor in Congress. 
Near fifty millions acres sold . . for a song," wrote 
Fisher Ames. 1 But such cautious men as Ames were 
few in number and most of them were silent. By 
the time reports reached Boston that the Legislature 
of Georgia was about to repeal the act under which 
the companies had bought the lands, numerous sales, 
great and small, had been made. In that city alone 
more than two millions of dollars had been invested, 
and this had been paid or pledged by "every class 
of men, even watch-makers, hair-dressers, and me- 
chanics." The Georgia Company conveyed eleven 
million acres on the very day that the Legislature 
of Georgia passed the bill declaring the "usurped 
act" to be null and void and asserting the title of 
the whole territory still to be in the State. 2 

Three weeks later, the news of the enactment of 
the rescinding law was published in the New England 
metropolis. Anger and apprehension seized the in- 
vestors. If this legislation were valid, all would lose 
heavily; some would be financially ruined. So a 
large number of the purchasers organized the New 
England Mississippi Company for the purpose of 
defending their interests. A written opinion upon 
the validity of their titles was procured from Alex- 
ander Hamilton, who was then practicing law in New 
York and directing the Federalist Party throughout 

1 Ames to Gore, Feb. 24, 1795, Ames, I, 168. Ames's alarm, how- 
ever, was that the Georgia land sale " threatens Indian, Spanish, and 
civil, wars." The immorality of the transaction appears to have been 
unknown to him. 

2 Haskins, 30. 



FRAUD AND CONTRACT 569 

the Nation. He was still regarded by most Federal- 
ists, and by nearly all moneyed men, as the soundest 
lawyer, as well as the ablest statesman, in America. 

Hamilton's opinion was brief, simple, convincing, 
and ideally constructed for perusal by investors. It 
stated the facts of the enactment of the sale law, 
the fulfillment of the conditions of it by the pur- 
chasers, and the passage of the rescinding act. 
Hamilton declared this latter act to be invalid be- 
cause it plainly violated the contract clause of the 
Constitution. "Every grant . . whether [from] . . a 
state or an individual, is virtually a contract." The 
rescinding act was therefore null, and "the courts 
of the United States . . will be likely to pronounce 
it so." l 

Soon after its passage, President Washington had 
received a copy of the Georgia land sale act. He 
transmitted it to Congress with a short Message, 2 
stating that the interests of the United States 
were involved. His principal concern, however, and 
that of Congress also, was about the Indians. It 
was feared that depredations by whites would cause 
another outbreak of the natives. A resolution was 
adopted authorizing the President to obtain from 
Georgia the cession of her "claim to the whole or any 
part of the land within the . . Indian boundaries," 
and recommending that he prevent the making of 
treaties by individuals or States "for the extinguish- 
ment of the Indian title." But not a word was said 
in Washington's Message, or in the debate in Con- 

1 Harper, 109. Hamilton's opinion is dated March 25, 1796. 3d 
Harper's pamphlet it is incorre